By Professor Kim Rubenstein
With a key focus of the Abbott government’s proposed counterterrorism measures on preventing Australians from fighting in overseas conflicts, such as those in Iraq and Syria, the abandonment of hard-fought dual citizenship laws is threatened in the rush.
In March, Australia’s Independent National Security Legislation Monitor linked the problem with the existence of dual citizenship in Australia.
The INSLM considered dual citizenship to be “deeply problematic”, raising issues of “divided loyalties”. It recommended that the concept of dual citizenship be abandoned in Australia. It’s a misguided approach, undermining the essence of the fabric of citizenship built up since 1949 and fails to understand just why dual citizenship is a significant aspect of membership in Australia.
Remember, dual citizenship is a longstanding part of the global legal landscape. As a matter of international law, foreign-born citizens have always been able to retain their existing citizenships in Australia if their former country allows it. Indeed, the Australian psyche is conditioned to dual citizenship as Australians were for many years both British subjects and Australian citizens.
Since 2002, in addition to foreign-born citizens being able to have dual citizenship, Australia has recognised that our citizens can take up another citizenship without losing their own. This addressed both the former arbitrary discrimination based on the order in which citizenship was acquired and the growing diaspora, of more than a million, who were still a significant part of Australia’s community, even if living and working outside its physical borders.
Lawmakers recognised that dual citizenship has been increasingly accepted in a world of international mobility and that it is possible for Australians to retain a strong and meaningful connection with Australia even when they acquire another citizenship. By allowing dual citizenship we moved towards a more unifying and inclusive notion of citizenship, one that affirms our multicultural heritage.
The INSLM, by focusing on dual citizenship in the context of the national security debate, risks undermining the loyalty and commitment that most of the estimated four million Australians who hold dual citizenship have to the community. The problem of Australian citizens being involved in violent conflicts on foreign soil must undoubtedly be addressed. Our citizenship law already provides that a person’s citizenship automatically ceases if they serve in the armed forces of a country at war with Australia. This provision applies only to dual citizens, so as not to render an Australian citizen stateless. In the 66 years of Australian citizenship this provision has never been used to strip an Australian of citizenship.
The present legal framework also allows revocation of citizenship on the basis of conviction for a serious offence that was committed before citizenship was conferred. Once a person is an Australian citizen, the consequences of committing a criminal offence are a matter for the criminal law. And that is where they should stay. Australia has a suite of laws that criminalise acts committed on foreign soil, including the existing offence of treachery.
Former prime minister Malcolm Fraser suggests that this could form the basis of dealing with Australians fighting to overthrow existing foreign governments. It would require only a proclamation of parliament to specify the countries concerned; it would be a criminal law measure with criminal law consequences.
The preamble to the Australian Citizenship Act 2007 states that Australian citizenship unites “all Australians, while respecting their diversity”. To politicise citizenship, and to use it as a tool of exclusion and as the basis of a threat, undermines its purpose and ignores the contribution that our dual citizens make.
The INSLM’s recommendation that “the 2002 legislated policy in favour of dual citizenship should be reconsidered” is problematic because it threatens to destroy a common bond. It would render citizenship another point of division and another force of marginalisation. Amid concerns about rising extremism, this is the last thing we should be doing.
Kim Rubenstein is director of the Centre for International and Public Law at the Australian National University. Jacqui Field is working with her on the second edition of Rubenstein’s Australian Citizenship Law in Context (LBC).
This article was originally published in The Australian