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1 Committee Secretary Senate Legal and Constitutional Affairs Committee Secretary Senate Legal and Constitutional Affairs Committee PO Box 6100 Parliament House Canberra ACT 2600 30 September 2019 Inquiry into Nationhood, National Identity and Democracy 1. Thank you for the opportunity to make a submission to the Legal and Constitutional Affairs References Committee Inquiry into Nationhood, National Identity and Democracy. 2. I am a senior lecturer at the ANU College of Law, Australian National University. My doctoral thesis examined the relationship between Australian values, national identity, and the Australian Citizenship Act 2007 (Cth). I make this submission in a personal capacity. 3. In making this submission, I have addressed some of the terms of reference together. I have also addressed the terms of reference in the following order; a, c + e, b, f. and d. I put forward 13 recommendations. Yours Sincerely Dr Anne Macduff 1 4. Overview of Recommendations: Terms of Reference a Recommendation 1: Contemporary Australia is culturally diverse, and expressions of ethno- cultural nationalism are inappropriate and harmful to the Australian community. Expressions of nationalism are justified only where they support liberal democratic values. Terms of Reference c and e Recommendation 2: There needs to be greater awareness by community leaders and politicians that ethno-cultural nationalism undermines liberal democracies. Further, the terms ‘Australian way of life’ and ‘Australian values’ can be vehicles for the expression of ethno-cultural nationalism in Australia. Recommendation 3: Government migrant integration policies should not be articulated in terms of assimilation, which assumes a homogenous mono-cultural ethnic national identity. Instead, if policies of national integration and social cohesion are to be promoted, then they ought to be supported by policies of multiculiculturalism. Terms of Reference b Recommendation 4: The Australian citizenship test (and associated booklet) should be repealed. The demonstration of a commitment to citizenship values can be substituted by the fact that the candidate has made an application to become an Australian citizen. Recommendation 5: Under the good character requirement in the Australian Citizenship Act 2007 (Cth), evidence of an inability to follow the law should only be demonstrated where a person has committed a ‘serious offence.’ The definition of a ‘serious’ offence should be defined in legislation as an offence (or offences) which results in (either alone or cumulatively) a specific term of imprisonment. Recommendation 6: All criteria for citizenship for conferral should be reviewed to ensure that the criteria be satisfied through an objectively determined facts. Recommendation 7: The capacity for the Minister to reject citizenship for conferral despite citizenship criteria being fulfilled under s24(2) should be repealed. Recommendation 8: The scope in which the Minister can exercise discretion in the conferral of citizenship, such as acting in the ‘public interest’ should be reduced. If this recommendation is not accepted, then clearer legislative guidance through which the criteria can be established should be provided. 2 Recommendation 9: De-identified, quantitative data on the number of rejections for Australian citizenship made by the Department, and the grounds upon which they have been rejected, should be made available publically. Recommendation 10: The provisions relating to citizenship revocation should be repealed. The only ground upon which a person ought to lose citizenship is where the individual renounces citizenship through an explicit statement communicated to the relevant state. Recommendation 11: Should the government retain the citizenship revocation provisions, de-identified quantitative data on the number of revocations, and the basis for the revocation, should be made publically available. Terms of Reference f Recommendation 12: The criteria for citizenship by conferral should would enable individuals to acquire citizenship by demonstrating that they have established a ‘genuine connection’ with Australia. Terms of Reference d Recommendation 13: A referendum should be put forward to change the Constitution to allow dual citizens to be eligible for election to the House of Representatives and Senate in the Commonwealth Parliament of Australia. 3 Terms of Reference a: ‘The changing notions of nationhood, citizenship and modern notions of the nation state in the twenty first century’ Nations and National Identity in the 21st Century 1. Public debate often assumes that nations, nationhood and national identity are objective facts. However, Benedict Anderson describes nation states as imagined communities,1 shaped by socio-political and historical contexts. 2. A short history of the Australian nation supports an understanding of national identity that is fluid and evolving. What is now Australia was once separate colonies. After the creation of Australia in 1901, individuals living in Australia did not identify with an Australian national identity as we would recognise it today. Rather, they described themselves as British subjects with allegiance to Great Britain. Even after the introduction of Australian citizenship in 1948, individuals living in Australia continued to identify as both Australian and British. Only in 1999 did the High Court of Australia legally recognise that the situation had changed, and that a British subject in Australia possessed an allegiance to a ‘foreign nation’.2 There are many similar examples all over the world. 3. National identity is sometimes understood as the set of shared behaviours, languages or values of a people in a given territory. This makes national identity seem natural and objective. Given the diversity of humans in any population, however, the behaviours, practices, and values identified as ‘national’ can only ever be aspirational. Consider for example, communicating in the English language as a part of the Australian national identity. Even if many people do speak English in Australia, not every person born in Australia speaks English. Perhaps they are born with a speech or hearing impediment that means that they cannot speak or hear. Others might choose to live alone and would rather not communicate in any language, even if they are fluent in English. In this case, English language is a practice that the community values, rather than a practice which everyone in fact shares. Once behaviours, language and values are selected as part of the national identity, they become expectations for individuals living in that community. Individuals modify their behaviour in order to ‘belong’ or fit in. 4. Scholars have studied the processes through which particular behaviours, languages and values become expressed as part of a national identity.3 Although wars and conflict create nations and national identity, so do every day and ‘banal’ events.4 This includes the placement of flags,5 the weather report, and sporting contests.6 1 Anderson, Benedict. Imagined communities: Reflections on the origin and spread of nationalism. Verso books, 2006. 2 Sue v Hill (1999) 199 CLR 462 3 Gellner, Ernst ‘Nations and Nationalism’(1983); Anderson, Benedict. Imagined communities: Reflections on the origin and spread of nationalism. Verso books, 2006. 4 Billig Michael‚ Banal Nationalism (Sage, 1995) 5 Elgenius, Gabriella Symbols of Nations and Nationalism: Celebrating Nationhood (Palgrave Macmillan, 2011) 6 6 Billig Michael‚ Banal Nationalism (Sage, 1995) 4 5. Nationalism and national identity understood as based on a shared set of behaviours, language or values, is a form of ‘ethno-cultural nationalism. This form of nationalism carries with it significant dangers. Expressions of nationalism can be used to censor and denigrate those who do not meet the ideal standard. This is particularly harmful when the denigration reinforces negative social stereotypes. Where expressions of nationalism allow negative stereotypes to circulate, those stereotypes gain legitimacy. When community leaders and politicians adopt and use expressions of nationalism based on negative stereotypes to gather support for their views, social division grows. Even relatively mild expressions of ethno- cultural nationalism undermine conditions of equality in a community. At its extreme, nationalism and national identity justify genocide. 6. To help prevent this slide into extreme forms of ethno-cultural nationalism, governments of modern, culturally diverse nation states have sought to locate a shared sense of community in neutral, civic values. Civic values can support and reinforce liberal democracy. There has been disagreement over what values are necessary to sustain a liberal democracy, but I argue that Baubὅck’s conception is the clearest.7 He argues that the values of a liberal democracy extend to a) protection from external threats (war/ violence) that would undermine a liberal democracy, and b) protection from internal threats that undermine liberal democracy.8 These might include, for instance; limits on hate speech, voting and election laws, protections for the rule of law and limits on unilateral Executive action. Commitment to these values still allows for considerable variation in implementation in different nation- states, but is a much more inclusive basis upon which to make claims about national values that ethno-cultural nationalism, particularly in modern, culturally diverse nations. 7. Australia is a culturally diverse society. Its indigenous peoples have the oldest, surviving culture in the world. Up to 40%
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