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Citizenship discussion paper offers a misleading take on this right

Discussing the rights and responsibilities of Australian citizenship is pointless without more information on the nature and justification of what is proposed. AAP/Dan Peled

The Abbott government’s discussion paper on the rights and responsibilities of citizenship calls for a “national conversation” on the issue. Unfortunately, the paper is akin to a push-polling exercise. It is both tendentious and misleading.

Most of the paper is devoted to framing citizenship in a way that is conducive to the government’s proposal to strip dual nationals involved in terrorist activities of their citizenship. Notwithstanding the title – Australian Citizenship: Your Right, Your Responsibility – the paper repeatedly talks of citizenship as a privilege, not a right.

“Privilege” is intended to convey something that should be valued and cherished. But, in legal terms, a privilege is something the government confers and can take away.

In this second sense, the language of “privilege” pre-empts a central issue for debate. Is Australian citizenship “conditional” on a ministerial assessment that someone “deserves” it? Should it be revocable on ministerial suspicion that a person has committed an offence?

Should there be any doubt about the government’s answer, the paper concludes that the privileges of citizenship:

… are fundamentally linked to an ongoing commitment to Australia and participation in Australian society.

It says:

Citizenship is a contract by which we all abide.

Citizenship is not a contract, nor a privilege

Australian citizenship is not a contract. Talk of “contract” is a loose and misleading use of legal language. More fundamentally, citizenship is not dependent on performance.

Australians are a mixed bunch, ranging from community saints to those convicted of terrible crimes. Those falling in the latter category don’t cease to be Australian. Citizenship status is not normative in that way.

The paper also talks of the “privileges of citizenship”. It suggests that the suspension of certain privileges of citizenship will help:

… ensure there are consequences for all Australians who engage in terrorism, not just dual citizens.

However, it is misleading to suggest we need to rely on citizenship law to ensure consequences for engaging in terrorism. This is the role of criminal law.

The paper includes being able to “re-enter Australia freely” among the “privileges of citizenship”. Joining the dots between this and Social Services Minister Scott Morrison’s public musings, there is the hint that an Australian’s right to re-enter Australia might be “suspended”. But the right to remain in, and re-enter, Australia is at the core of citizenship.

It is far from clear that as a matter of Australian constitutional law – bracketing international law – the government has the power to remove or suspend a citizen’s right to enter or remain in Australia. If the government can suspend or remove this right, the difference between having and not having Australian citizenship becomes difficult to discern.

The paper introduces citizenship revocation proposals with reference to comparative jurisdictions. It says that the US has:

… powers to revoke citizenship on broad national security grounds.

The US government’s powers to unilaterally revoke citizenship are actually extremely narrow. US Supreme Court rulings have narrowly constrained the government’s ability to unilaterally revoke birthright citizenship. The reasoning behind these rulings is grounded in America’s constitution and history.

Nonetheless, at their core is a normative concept with potential application to Australia – one that challenges the Australian government’s depiction of citizenship as a privilege. As expressed in a 1958 Supreme Court judgment:

Citizenship is not a licence that expires on misbehaviour … And the deprivation of citizenship is not a weapon that the government may use to express its displeasure at a citizen’s conduct, however reprehensible that conduct may be.

How might it affect government policy?

The paper’s timing suggests that it will not actually inform the current set of proposals to strip citizenship – at least as applying to dual nationals. Prime Minister Tony Abbott has indicated that the relevant legislation will be introduced before parliament rises for the winter break on June 25. The closing date for public submissions to the paper is June 30.

It is possible though, that responses to the paper may feed into further proposals – such as extending revocation to sole nationals.

If the “national conversation” is to have any meaning, a number of questions will need to be considered, including:

  • Is citizenship stripping effective as a counter-terrorism tool?

  • Do its benefits outweigh its costs?

  • Is it effective as a means of expressing moral opprobrium about terrorism, or does it falter on morally arbitrary distinctions between dual nationals and sole nationals, or between those sole nationals who are eligible and those who are ineligible for another citizenship?

  • How will we factor in the fact that eligibility depends upon the nationality laws of other countries and is beyond Australia’s control?

  • Will citizenship stripping undermine the equality at the heart of citizenship?

  • Does it undermine our obligations to other countries?

  • Should we be following close on the heels of recent British developments – as the government seems to want to do – when these developments are taking Britain into largely uncharted legal waters?

  • Are we reconciled to the potential and sizeable expansion of those vulnerable to government powers under such laws?

  • Have we considered just how many Australians are dual nationals or are eligible, through birth or descent, for a second nationality?

The conversation will be superficial and pointless without more information on the nature and justification of what is proposed. It needs to begin by questioning the government’s own discussion paper.

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