PETER HUGHES. Citizenship for “them” and citizenship for “us”

There is great irony in the fact that the citizenship weapon which the government so recklessly aimed at migrants ended up blowing up in the face of its own parliamentarians.

The parallel worlds of the government’s failed Australian Citizenship legislation – the Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 – and the constitutional fiasco give some interesting insights into how citizenship law and policy is regarded by the government.

Citizenship for “them”

The Citizenship Bill, which I previously described as “poisonous and pointless” in Pearls and Irritations was defeated in the Senate by Labor, the Greens and NXT and finally removed from the Senate notice paper.

In the absence of the government offering any evidentiary justification for the Bill, it was clear that its motivation was entirely political. The measures included a longer residential qualifying period for Australian Citizenship, raising of the English language competency requirement to university level, a highly subjective test of integration, barring citizenship for “conduct inconsistent with Australian values” and limiting the number of times a migrant could sit the Australian Citizenship test.

The Attorney General did not seem at all bothered by the “brutal literalism” of the Bill at the time or indeed the fact that it gave the Immigration Minister considerable discretion to administer it in the harshest possible way.

Its impact over time would have been to permanently exclude hundreds of thousands of people from Australian citizenship – despite the fact that those migrants would live out the rest of their lives in Australia.

The government suspended processing of tens of thousands of Australian Citizenship applications for months while the Bill was still in play. Imagine how Australian citizens would react if they were told that their Australian passport applications were being put on hold indefinitely because the Australian Passports Act might change in the coming months.

Minister Dutton attempted to save the failing Bill by proposing a marginally lower level of English language competence, but the Opposition parties and crossbenchers did not buy this. The trouble with a Bill that is fundamentally exclusionary and discriminatory in its impact is that it’s hard to make it better by making it a little less exclusionary and discriminatory.

Citizenship for “us”

When the section 44 constitutional crisis broke out, the Government’s approach to citizenship became very different.

Some Coalition lawmakers who voted so willingly to create new and very tough hurdles for migrants wanting to gain Australian citizenship, suddenly became very dazed and confused and found their own personal citizenship status to be unfathomable.  Equally, the meaning of the Constitution which had been pretty much settled by the High Court, and crystal clear in its wording, somehow became uncertain. Warnings by Parliamentary Committees in past years seemed to be of no significance.

The fact is that, in most cases, it’s not that difficult for an Australian to establish whether or not he or she is a dual citizen. Knowing where one’s parents are born and making due diligence enquiries either on a foreign government website, direct to that government or through use of a foreign expert usually does the trick.

Take the UK. Every young Aussie-born person planning to go to the UK to work usually takes less than 24 hours to figure out the benefits of having a UK born parent. They can quickly find out from  if they have citizenship by descent from the time of birth and therefore unrestricted access to the UK labour market. There can be complications, but mostly it’s not all that confusing.

And yet, when the constitutional saga unfolded, we heard references to the parents of parliamentarians being born in Wales and Scotland, as if these places were somehow different from the UK and there was no UK citizenship consequence. Last I heard, Wales lost its independence in 1542 and Scotland did so in 1707. But, as Donald Trump would say, “Who knew?”

We also heard Barnaby Joyce talk about “overreach” of foreign laws and Josh Frydenberg reported as saying “it’s absurd to think that you could become the citizen of a country unwillingly.” Really? To take the UK example again, every baby now born in Australia to a UK born parent automatically becomes a UK citizen by descent at birth. I’ve never heard of officials from the UK High Commission rushing into maternity wards to get sign-off from the newborn before that happens.

The giving of citizenship in this way is usually to confer a benefit and is mostly regarded as doing so. Renunciation of that citizenship under foreign law is the answer for those who don’t want it.

“The dog ate my birth certificate” was about the only excuse not used for being uncertain of a foreign citizenship status. Try telling the Australian Taxation Office that you didn’t declare some income because you always “felt” that you had paid your fair share of tax. Many journalists seemed happy to agree about how difficult it all was. The confected confusion was convenient for those who benefited from obfuscation.

Section 44 of the Constitution may well be outdated and in need of change, but it cannot be ignored as inconvenient by political candidates and parliamentarians just as people in the community cannot ignore the laws they might consider “outdated”, such as those related to assisted dying or marriage equality.

It is ironic that the very citizenship weapon that the Government had aimed at migrants blew up in the faces of many Coalition parliamentarians.

While the strict constitutional requirement remains in place, it seems perfectly reasonable that politicians and parliamentarians should take responsibility for understanding something as fundamental as their own heritage and citizenship. Regrettably, recent experience has taught us that we need greater transparency on this issue and some form of independent verification early in the electoral process of whether or not a candidate has satisfactorily excluded the possibility or actuality of being a dual citizen.

The Prime Minister’s belated proposal for a Parliamentary register is a step in the right direction, but many questions remain about independent verification and what penalties there are for failure to disclose.

The Australian community should also take advantage of this new-found interest in citizenship to encourage the government to restore Australian citizenship to its former inclusive role in Australian society (which was actively promoted by previous Coalition governments) and abandon attempts to shut migrants out of it.

If the government is really serious about the English language ability and civic participation of migrants, there is scope to improve outcomes in these areas through expansion of civics education and English language classes for migrants much more effectively than through erecting counter-productive citizenship barriers. Perhaps they could also throw in courses on citizenship law for political candidates and parliamentarians.

Peter Hughes is a Visitor at the School of Demography, Australian National University. He was formerly Deputy Secretary, Department of Immigration and Citizenship.

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5 Responses to PETER HUGHES. Citizenship for “them” and citizenship for “us”

  1. Tony Kevin says:

    Peter Hughes was the brightest light on the Xmas Tree in the old Immigration Dept , when its primary mission was still to manage efficiently and humanely Australia’s immigrationprogram. No one knows more about these issues than him. I love the sardonic and amusing way in which he compares and contrasts erring parliamentarians’ and their acolytes’ treatment of themselves/their friends, and theirintended cruel treatment of the rest of our population who fell at risk under citizenship issues. Beautifully crafted, a contender for Best Australian Essays of 2017.

    Today’s Canberra Times advocated Turnbull call a general election now. I see no other way to clean these Augean stables. The continued piecemeal agony is destabilising and dreadful. I am so sick of these people sheltering their risk at public expense. They are disgraceful individuals. As Peter so brilliantly argues, the rest of us have to obey the laws – whatever they are, and no matter how stupid they are. I pay now $4000 a year for medicines I used to get nearly free under a Commonwealth Seniors Health Card because inflation took my income over a certain arbitrary
    threshold. Do I hate it? Yes. Is there anything I can do about it? No.

  2. billie says:

    As I understand it today there are babies born in Australia who are not entitled to Australian citizenship.

    For example if your parents came to Australia from New Zealand after 2001 and don’t have Australian citizenship then you are a New Zealand citizen, you can access Medicare, you have to pay full fees for university tuition and you won’t get the aged pension. The next generation born into such a family is “stateless”

    These changes to laws accompany the government exiling New Zealanders to rot on Christmas Island until they decide to return to New Zealand. I think they are mainly Maori and Samoan

    • Alan says:

      The issue is dual citizenship and therefore conflicting loyalties not an absence of Australian citizenship. The issue of conflicting loyalties to vested interests who may be foreign entities or citizens will be much more difficult to guard against.

  3. Mike Yewdall says:

    An important article such as this and the many others that appear on this site are read, probably, by a few interested and engaged people and are simply not in the consciousness of the many “average” (terrible word) people who get their news and views from the News Ltd tabloids, loud mouth radio announcers or a certain red head. It’s dispiriting that our mass media is so concentrated on lowering even further the lowest common denominator. ’twas not always thus.

  4. Bruce Wearne says:

    Thankyou Peter. It’s good to get a perspective from someone who can helpfully construe this crisis in constitutional and historical terms. This issue is deep and will not go away. It is about how we view statecrafting as a part of what we do as members of this polity. Even if Malcolm and Bill conceive a bi-partisan agreement so that a formal declaration be made by every elected Parliamentarian, this on its own can never restore trust in our Parliaments and more particularly the respective contributions of their parties. Don’t they as party members hear the call to reform of their political parties in this matter? Apparently not. It just might throw too much of a spanner into their short-term electoral machinations. How much did their party machines know about this “blip” before it became an issue? And if they didn’t know about it, why didn’t they? Ah, the issue of the electorate’s trust rises once more. (Thankyou Eva Cox).

    But then let’s not limit our focus to who is qualified to represent electors in the Commonwealth’s Parliaments. What about those standing for Local Councils? Does dual citizenship prevent a person from sitting on a local council? Why? Why not? And then there’s the other indispensable side – what about the voters? What about those on electoral rolls who are not citizens? Are they now to be expunged from the list as this issue runs its course? Now that would be a witchhunt! The challenge is to find a way of “doing politics” which addresses all these issues with a political coherence that promotes just systems of parliamentary representation…

    It’s highly ironic that Alfred Deakin’s inaugural parliamentary speech in the Colonial Parliament was to resign in order to submit to a re-run because the integrity of the vote was compromised by a ballot paper shortage for some in his West Bourke electorate. And he lost the re-run. He did not have the current view of parliamentary representation in which this crisis is a threat to a presumed career-path of parties and their candidates. Deakin as member of the polity (British subject) knew he had an ongoing public responsibility and thus he was unwilling to compromise the necessary probity of any and all Parliamentary seats. Are the PM and Leader of the Opposition capable of forsaking their party agendas to promote principled state-crafting?

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