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

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Recommendation 4: The Australian citizenship test (and associated booklet) should be repealed.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.

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.

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)

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% of the current population have migrated here from other nation-states, or their parents have. Migrants living in Australia have diverse ethnic and cultural practices, languages and values. It is harmful to the sense of attachment and wellbeing of a culturally diverse people to insist on one, aspirational ethno-cultural national identity.

7 Baubὅck, Rainer ‘Whose Bad Guys Are Terrorists?’ in Baubock, R (ed) Debating Transformations in National Citizenship (September 2018, IMISCOE Research Series), 201. 8 Baubὅck, Rainer ‘Whose Bad Guys Are Terrorists?’ in Baubock, R (ed) Debating Transformations in National Citizenship (September 2018, IMISCOE Research Series), 201.

Terms of Reference c and e: ‘Contemporary notions of cultural identity, multiculturalism and regionalism’ and ‘Social cohesion and cultural identity in the nation state’.

Australian National Values and Policies of Assimilation, Social Cohesion and Multiculturalism

8. In contemporary public discourse, expressions of nationalism are assumed to be good for our community. Australian nationalism or ‘patriotism’ is encouraged, as are expressions of national pride. Expressing national pride is important in overcoming ‘the cultural cringe’,9 an lingering uncertainty about our national identity.10 Pride and commitment to Australia is generally considered necessary to create a stable society, and one that is socially cohesive.11

9. I argue, however, that there are different forms of patriotism and social cohesion. Not all are appropriate for a multicultural community. We ought to be wary of forms of patriotism and social cohesion that invoke ethno-cultural expressions of nationalism. Presently, the terms ‘Australian values’ and ‘Australian way of life’ import an ethno-cultural notion of national identity that is harmful to Australian democracy.

10. To appreciate the ethno-cultural inflections of the terms ‘Australian values’ and ‘Australian way of life’, it is useful to examine their evolution and use in Australian society.

11. The term an ‘Australian way of life’ was coined in 1958 by the historian Russell Ward, in his book ‘The Australian Legend’. In that book, he argued the Australian environment encouraged certain character traits in Australians, or an ‘Australian type’. The Australian type, while not articulated precisely, was assumed ‘to be British, modified by climatic conditions.’12 Given the variety of physical environments in Australia however, from urban to the bush, it is a fiction to suggest that the country ‘produces’ any particular type.

12. The ‘type’ created by an Australian Way of Life has also criticised as being overly narrow and not representative of the diversity of modern individuals in Australia. The term has been criticised by feminists,13 and indigenous scholars,14 who struggle to see how their own contributions to the nation can be recognised within it.

13. In spite of these criticisms, the use of the terms Australian Way of Life and Australian Values has seen a popular resurgence in the public discourse since 2001. In the post 9/11 world, engaging in acts of terrorism have been described as contrary to ‘Australian values’ and the ‘Australian Way of Life’. Violence and killing innocent people is abhorrent, and is contrary

9 https://www.abc.net.au/news/2007-07-10/getting-over-australias-cultural-cringe/95094 10 https://www.abc.net.au/news/2007-07-10/getting-over-australias-cultural-cringe/95094 11 https://www.humanrights.gov.au/about/news/speeches/whos-afraid-pride-and-patriotism, also Soutphommassane, Tim ‘The Virtuous Citizen’ (2012). 12 White, Richard ‘The Australian Way of Life’(1978) 18(73) Australian Historical Studies 528 13 Murries, Lizzi. Áustralian Legend and Australian Men’ in Richard Nile (ed) The Australian Legend and its Discontents (UQP, 2000) 14 Haebich, Anna. ‘Retro-Assimilation’(2007) 15 Griffith Law Review 245

to human values. In Australia, however, the use the terms Australian Values and Australian Way of Life in this context has meant that individuals with unAustralian values has become associated not only with terrorism, but with a cluster of other racial and cultural characteristics associated with terrorists. This has led some faith and cultural practices associated with the Middle East being described as unAustralian, such practising Islam. The negative stereotype of all Muslims as violent, anti-democratic, religious fanatics has a long history in western civilisation. Edward Said analysed how these negative stereotypes about Islam and the Middle East have origins in the academic discipline of ‘Orientalism’ in 19th century Europe.15 These negative stereotypes can legitimise acts of racial violence. Research has confirmed that racial discrimination against Muslims in Australia is high.16 The ongoing security discourse surround terrorism links Muslims with these negative stereotypes, which heightens anxieties about the nation and its national identity.

14. The resurgence of the terms Australian values and Australian Way of Life in the 2000s came at a time where there was also an official shift away from multiculturalism.17 At least until 1996, Australia had adopted a policy of ‘multiculturalism’.18 Although there are differing understandings of the word ‘multiculturalism’ in policy and in scholarship, a multicultural policy broadly acknowledged that migrants should be able to maintain their cultural diversity if they choose. In particular, that migrants could continue to engage in diverse social, cultural and linguistic practices and integrate into the civic community, provided that they committed to Australia’s overarching liberal and democratic framework.

15. In the 2000s, however, Australian political leaders explicitly rejected the term ‘multiculturalism’. John Howard and Peter Costello publically stated that multiculturalism was undesirable because it is divisive of national unity and social cohesion.19 The official shift was clearly signalled when the word was dropped from a key government department in 2006.20 Instead, the government focussed on achieved social cohesion through a policy of assimilation. Although not always explicit, under this policy, migrants were expected to adopt an ethno-cultural Australian identity.

15 Said, Edward. Órientalism (1978) 16 Poynting, Scott, and Greg Noble. Living with racism: The experience and reporting by Arab and Muslim Australians of discrimination, abuse and violence since 11 September 2001: Report to the Human Rights and Equal Opportunity Commission. Sydney: Centre for Cultural Research, University of Western Sydney, 2004. 17 Koleth, Elsa ‘’ A review of Australian policy statements and debates in Australia and Overseas’ (Parliamentary Library, 2010) . 18 Koleth, Elsa ‘’ A review of Australian policy statements and debates in Australia and Overseas’ (Parliamentary Library, 2010) . 19 ‘John Howard’s Multiculturalism Paradox’ https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id:%22media/pressrel/IMYI6%22; ‘Our values or Go Home: Costello’ https://www.theage.com.au/national/our-values-or-go-home-costello- 20060224-ge1tii.html; 20 In 2007, the Department of Immigration, Multiculturalism and Indigenous Affairs was renamed the Department of Immigration and Citizenship (2007-2013).

Terms of Reference b: ‘The rights and obligations of citizenship’

A. Australian Values and Citizenship Law

16. Not only does ethno-cultural nationalism currently infuse Australian public discourse and government policies, it has increasingly been incorporated into Australian citizenship law. This gives ethno-nationalism official recognition and support. Its incorporation into Australian citizenship laws was not achieved in a single, specific reform. Rather, it was achieved through a series of events that increasingly linked public discussions of Australian values to citizenship laws. As the change has been incremental, it has largely gone unnoticed. My thesis examines in detail how this occurred.21 The following is a brief summary.

17. ‘Australian values’ have not always been incorporated into law. Previously, law-makers recognised that Australia was so diverse that it was a virtually impossible task to identify a shared set of Australian values. For instance, the Constitutional Commission (1985-1988) resisted calls to alter the preamble to include an updated statement of Australian values. There were three reasons, one being identified later by McKenna as ‘the difficulty of isolating the fundamental sentiments which Australians of all origins hold in common.’22

18. There was another attempt in the context of the debate about whether Australia should become a republic. At opening of the Constitutional Convention for a Republic in 1988, Malcom Turnbull stated that;

‘We believe that the preamble should be amended. If it is to remain a statement of history, then it should pay appropriate regard and respect to Aboriginal history ... The preamble should also affirm our commitment to those core political values which define our nation.’23

This led to the drafting of a new constitutional preamble in the late 1990s, which attempted to reflect the broad uniting sentiment of the Australian people. But when it came to the vote at referendum, it was resoundingly defeated. The failure was attributed to a number of causes, including the lack of consensus about the wording.24

19. In 2007, the proposal to introduce a citizenship test was the first step towards the incorporation of Australian values into the law. The discussion paper stated that access to citizenship was a common bond that required individuals to commit to shared values and way

21 Macduff, Anne. Advance Australia Fair? Race, Citizenship and National Identity in Contemporary Australia (ANU thesis, 2017) in < https://openresearch-repository.anu.edu.au/handle/1885/133589>. 22 Mark McKenna, First Words, (Research Paper 16, 1999-200) https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp99 00/2000RP16. 23 Cited in Mark McKenna, First Words, (Research Paper 16, 1999-200) https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp99 00/2000RP16; 24 McKenna, Simpson and Williams ‘With Hope in God: the Prime Minister and the Poet. Lessons from the 1999 referendum on the Preamble. (2001) 24(2) UNSW Law Journal 401

of life.25 The citizenship test was a means of ensuring that immigrants (who would be the only category of citizenship applicants who would be required to sit the test) understood ‘the Australian Way of Life’ and ‘Australian values’.26

20. The content of Australian values and Australian way of Life was not defined in the legislation, or even the discussion paper. Instead, it t would be set out in a citizenship booklet. The citizenship test would be based on the booklet. This mechanism allowed the government to sidestep any public debate about what would be conveyed as Australian values and the Australian Way of Life.

21. During the Parliamentary Debates on the bill introducing the citizenship test, there was concern expressed that there was no such thing as Australian values. A minority claimed that the Australian community was too diverse to ever be able to define these values, or assess them.27

22. The 2009 review of the citizenship test, however, cemented the use of the terms Australian values and Australian Way of Life into citizenship law. The 2009 review identified that the Australian values assessed in the citizenship test ought to link more closely to the values in the citizenship preamble and pledge. The link between the Australian Values and the preamble provided a more objectively respectable foundation for the citizenship test, because the values in the preamble are broadly consistent with liberal, democratic values. The way that citizenship values have been understood and applied, however, is still anchored ethno- cultural Australian values in the citizenship booklet. The citizenship pledge and preamble created a bridge. It permitted the ethno-cultural expressions of national identity in the words of Australian Values and Australian Way of Life to cross over, and become synonymous with citizenship values.

23. Now the term Australian values is used as a reference point in policy and the application and interpretation of Australian citizenship law. For example, the citizenship value of ‘following the law’ is used in assessing applications for citizenship by conferral. To be eligible for citizenship by conferral, an individual must be ‘of good character’.28 Good character is not defined in the Australian Citizenship Act 2007 (Cth). Government policies indicate that a person is not of good character where they have committed a ‘serious offence’.29 A serious offence is defined as one with ‘a term of imprisonment of 12 months or more’.30 Since an amendment to the policy in 2013, minor traffic offences can now be assessed as

25 Australian Government, Australian Citizenship: Much More Than a Ceremony’(2007) 26 Australian Government, Australian Citizenship: Much More Than a Ceremony’(2007) 27 Macduff, Anne. "The Citizen’s Other: Australian Political Discourse on ‘Australian Values’, Migrants and Muslims." (2017) No Foundations 15, 46. 28 Australian Citizenship Act 2007 (Cth) s 21(2)(h). 29 Australian Citizenship Instructions 10.3.4, 10.5. 30 Australian Citizenship Instructions 10.5.2. It states that to be of good character, applicants must not ‘be violent, involved in drugs or unlawful sexual activity, and not cause harm to others through their conduct (for example, recklessness exhibited by negligent or drink driving, excessive speeding or driving without licence or insurance)’.

demonstrating that an individual cannot obey the law.31 This creates a double standard, as many Australians break traffic laws and while undesirable, it does not undermine their claim to citizenship status. For migrants however, it might delay their application for citizenship and political participation.

24. Ensuring that Australian citizenship values are applied as liberal, democratic values does not necessarily require a change in the words of the preamble or the pledge. However, the citizenship test as a means of assessing the extent to which those values are understood, and the associated booklet, ought to be repealed.

25. Indeed, the application for citizenship process should be as minimal as possible. Where an individual meets the explicit criteria required, and they consent to acquire citizenship by making the application, then this should be sufficient to grant citizenship. This would understand conferral of citizenship itself as the means of integration, rather than the reward for proving that one has integrated. Understanding citizenship as a means of integration was indeed the conception of Australian citizenship underlying the citizenship of regulation between 1948 and 2007. In that period, many migrants were successfully became contributing members of the Australian community.

26. It would also be desirable to more clearly expunge the influence of ethno-cultural nationalism from the interpretation and application of the Australian Citizenship Act. To this end, the eligibility criteria for citizenship needs to be able to be demonstrated through the clear and objective existence of facts. This would reduce the problematic importation of ‘Australian values’ into an interpretation of the legislative criteria. For example, if good character continues to be a criterion for citizenship by conferral, then it should be made clear what behaviour amounts to demonstrating that a person is unable to follow the law. A term of imprisonment, be it calculated cumulatively, or served as a suspended sentence, would satisfy this recommendation.

Recommendation 6: All criteria for citizenship for conferral should be reviewed to ensure that the criteria be satisfied through an objectively determined facts.

31 See for instance Apire v Minister for Immigration and Border Protection [2014] AATA 193; Yang v Minister for Immigration and Border Protection [2014] AATA 731.

B. The Regulation of Citizenship by Naturalisation and Revocation in Australia

27. The importation of Australian values into citizenship law has had a deleterious impact on democracy and equality in Australia. This impact has been further exacerbated by the current mechanisms through which Australian citizenship is regulated. These mechanisms give the Executive (and his or her decision-makers in the public service) wide discretion to determine who is an Australian citizen. It is inconsistent with a democracy that the Executive control decisions about who is to be admitted, rather than the people (including their elected representatives). It is essential that the discretion of the Executive be constrained through clearer legislation which has been approved by the democratically elected members of parliament.

28. Since 2007, the Executive has had ultimate and final decision making power over who becomes a member through citizenship by conferral. Since 2007, the Act is clear that the Minister may not confer citizenship even when all the other criteria are satisfied.32 In undertaking my PhD research, I asked the government department how many applicants have been rejected for citizenship under this discretionary provision. I was informed that this quantitative data was not kept. There is therefore no means of knowing how frequently this power is used. It would be valuable have this de-identified information published.

29. There has also been an expanding number of grounds upon which a person may have their citizenship revoked. While the government has recently provided some information about the numbers of individuals whose citizenship has been revoked, there are no mechanisms for reporting exactly how many citizens have had their citizenship revoked and on which grounds. Again, this makes it difficult to know to what extent this power is being used.

30. I have argued in a previous submission that the revocation of citizenship is not consistent with a liberal democracy in any circumstance.33 Even in the case where a citizen has committed an egregious act, the appropriate punishment is imprisonment. Revocation provisions do not enhance democracy, even when the citizen is alleged to have committed acts of terrorism which themselves undermine democracy.34 However revocation provisions do undermine democracy, by compromising the fabric of the body politic.

Recommendation 7: The capacity for the Minister to reject citizenship for conferral despite citizenship criteria being fulfilled under s24(2) should be repealed.

32 Australian Citizenship Act 2007 (Cth), s 24(2). 33 Macduff, Anne. Submission to the Joint Committee on Intelligence and Security, Review of the Citizenship Cessation Renunciation by Conduct and Cessation Provisions’(2019) . 34 Baubὅck, Rainer ‘Whose Bad Guys Are Terrorists?’ in Baubock, R (ed) Debating Transformations in National Citizenship (September 2018, IMISCOE Research Series), 201.

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: ‘The extent to which nation states balance domestic imperatives and sovereignty and international obligations’

Widening grounds for recognising membership under International law of nationality

31. In law, nationality and citizenship are terms used to describe different ideas. Nationality describes the relationship between an individual and a state for the purposes of international law. Citizenship describes the between an individual and a state for the purposes of municipal (or domestic) law.35 Although on many occasions, citizenship and nationality coincide, they do not necessarily. 36 There is a body of international law that establishes a test for determining nationality. The power to grant citizenship to an individual lies within the sovereign power of each nation-state.

37. Nottebohm determines the criteria used in international law as to whether an individual is a national of a particular state.37 That case held that legal status alone is not sufficient, an individual must also have a ‘genuine connection’ with that state. A genuine connection was established by the existence of social facts including residence, taxes, and activities. In this case, it was determined that Nottebohm had no genuine connection with Liechtenstein because he had never lived in or had any business or other social connections to the country. The outcome was that Liechtenstein could not use international law to prevent the confiscation of Nottebohm’s property by Guatemala.

38. A further aspect of international law on nationality that is developing is illustrated in the case of Nystrom, and discussed by Rubenstein and Lenagh-Maguire.38 This aspect concerns the situation where there an individual can establish a meaningful connection with a state according to the international law on nationality, although they do not possess a legally recognised citizenship status according to that state. The case of Nystrom raised this issue. This case involved an individual who had lived in Australia since he was 1 month old, on a permanent residency visa. During young adulthood, he had committed a number of serious offences. The Australian government cancelled his visa and deported him to Sweden, where he had citizenship by birth.39 He took his case to the UN Human Rights Committee and argued that he was a national of Australia who had been arbitrarily deprived of returning to ‘his own country’, a protected right under Art 12(4) of the ICCPR.40 His argued that he had established a meaningful connection with Australia, for the purposes of establishing a de facto nationality.

35 See Boll, Alfred. ‘Multiple National and International Law’ (2007,Martinus Nijhoff Publishers) 36 The distinction between these terms is further confused by the fact that within some states, multiple ‘nationalities’ may (or may not) lead to recognition as a citizen. Nationality also has a third usage, which is used to describe a shared set of ethnic practices associated with a people, as described earlier in the submission. 37 Liechtenstein v Guatemala (Nottebohm) 1955 ICJ 4. 38 Rubenstein, Kim and Lenagh Maguire, Niamh. More or Less Secure? Nationality questions, Deportation and Dual Nationality‘ in Edwards, Alice and van Waas, Laura (eds) Nationality and Statelessness under International Law. (Campbridge University Press, 2014). 39 Nystrom (2006) 228 CLR 566 40 UN Human Rights Committee, Nystrom v Australia CCPR/C/102/D/1557/2007.

39. This case highlights that both the actions of the individual and the state ought to contribute to the determination of the ‘establishment of a genuine connection.’ So whilst neither the individual nor the state can unilaterally claim that a relationship between them exists, neither can either of them deny the existence of that relationship without consideration of the factual circumstances of a genuine connection.

40. The meaningful connection that an individual may independently make is not currently recognised in Australian domestic law. Interestingly however, the genuine connection test as determined by the facts of the individual themselves was once recognised by Australian law through the ‘absorbed persons’ visa’. While introducing a form of citizenship based on ‘absorption’ might leave too much ‘control’ in the hands of an individual, there ought to be some obligation on the state to recognise a genuine connection by virtue of connection to the community. This would bring international law on nationality and the Australian law on citizenship into better alignment.

Recommendation 12: 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: ‘the role that globalisation and economic interdependence and economic development plays in forming or disrupting traditional notions of national identity’

Dual citizens and enhancing Australian democracy

41. There are many responsibilities associated with Australian citizenship, including political participation. There are a number of political activities which citizens are encouraged to engage in, including serving as an elected representative. There is currently a democratic deficit in Australia due to the high number of dual citizens who are ineligible to run for election to the Commonwealth Parliament.41

42. In 2000, it was estimated that there were 5 million dual citizens in Australia.42 This is now likely to be much higher. Since 2002, Australia has permitted Australians to possess dual citizenship. The number of dual citizens in Australia are likely to continue to grow as a proportion of the population. One reason is that there has been a general trend across the globe, due to a shift towards greater tolerance, if not acceptance, of multiple citizenship status.43 This means that migrants who come to Australia are more likely to not be required by their country of birth to renounce their citizenship in Australia. Globalisation makes it increasingly common for Australians to live, work and raise families in a places outside Australia. This means that they, and their children, are more likely than before to have multiple citizenships.

44. If 40% of the Australian population was either born overseas or their parents were, then a conservative estimate is that our parliamentary representatives are drawn from 60% of the population. If that is the case, then our parliamentarians are not representative of the Australian people.

45. Further, due to the importance of needing to go through the process of divesting themselves of multiple citizenships before running for parliament, are current parliamentarians are hobbled when engaging with issues of multiple citizenships. This is because if they disclose tolerance to maintaining multiple links with different nations, their legitimacy and loyalty are potentially called into question. As a result, the laws that the parliament passes may not reflect, nor engage with, this economically and culturally interdependent world. This is inappropriate in a modern, multicultural Australia.

47. There may be a concern that dual citizens who serve as members of parliament may not be loyal to Australia. However, this is not consistent with the policy position towards dual

41 Commonwealth Constitution of Australia, s44 (i) 42 Zappala, Gianni and Castles, Stephen. ‘Citizenship and Immigration to Australia’ in Alienkoff and Klusmeyer (eds) ‘From Migrants to Citizens: Membership in a Changing World’ (Carnegie Endowment for International Peace, 2000): 32 – 81. 43 Faist, Thomas and Kivisto, Peter (eds). Dual Citizenship in Global Perspective (palgrave macmillan, 2007)

citizenship since 2002. That is, there is recognition that a dual citizen may have more than one citizenship, have multiple obligations, without compromising their loyalty to Australia.

48. Additionally, in the event that obligations to multiple states are contradictory, this is not an insurmountable problem. There are existing mechanisms to resolve such conflicts of interests. These mechanisms include registers, declarations and abstentions. The conflict of interest arising from a member of parliament holding multiple citizenship is unlikely to be any more significant than a conflict of interest arising from business dealings.

49. Moreover, the legal status itself is unlikely to compromise a person’s commitment and make them disloyal. Attitudes of loyalty cannot be assured through legal regulation. Espionage and treason is not facilitated by, nor enabled, by the legal status alone.

50. In a previous parliamentary inquiry on s 44 of the Constitution, a recommendation was made by the House of Representatives Standing Committee on Legal and Constitutional Committee to permit dual citizens to be eligible to be elected to Federal Parliament.44 This recommendation should be adopted.

44 December 18 1998.