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 www.gov.uk/check-british-citizen  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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Peter Hughes is a Fellow of the Centre for Policy Development. He had a long career in the Commonwealth Department of Immigration and Citizenship, retiring as Deputy Secretary in 2011. He was awarded the Public Service Medal in 2005 for outstanding public service in the development of policies and programs to increase citizenship, multicultural harmony and the settlement of refugees.

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