Citizenship in Australia
Citizenship in Australia has a complex and confusing history. At Federation in 1901 no legal category of Australian citizenship existed: 'British subject' remained the sole civic status. Since the delegates to the Australasian Federal Convention of 1897–98 faltered over the issue of citizenship, the Australian Constitution provided neither a definition of citizenship, nor a power over it. The term 'citizen' was not employed in British law, which spoke only of 'subjects' at that time, although the former term was frequently used in political discussion to refer to the members of the colonies and the mooted federation. The Convention wished to preserve the British nationality and British subject status already existing in the colonies since both politicians and public identified themselves, and the state they were creating, as British. Several notable liberals argued, as much from nationalist enthusiasm as legal need, that a definition of citizenship, or a power over it, should be included in the Constitution to identify British subjects resident in Australia and to allow future parliaments to deal with circumstances which the delegates could not yet envisage. However, the proposal failed when agreement could not be reached on a meaning for an Australian citizenship supplementary to the status of British subject, and the issue became confused over the co-existence of state and federal citizenships. When the matter was revisited during a proposal for a safeguard of individual rights – which eventually became, in much reduced form, section 117 of the Constitution – debate again floundered in confusion over interpretation of the term 'citizen'.17 Its republican connotations also figured in the reticence of delegates to give it legal meaning, because it could be construed as a departure from British forms of government. Eventually, the term 'citizen' was avoided in the Constitution and reference made only to the 'people of the Commonwealth'.18
Between the foundation of the Commonwealth in 1901 and the proclamation of the Nationality and Citizenship Act 1948 on Australia Day 1949, British subject remained the only formal civic status in Australia. However, a de facto administrative Australian citizenship operated during the period which arose from the necessity of distinguishing between those British subjects who were permanent residents and belonged to the Commonwealth (in the sense that they could not be deported), and those British subjects who were merely visitors or who were yet to reside in Australia long enough to be regarded as belonging. Contributing to this administrative concept of citizenship were several High Court decisions which limited the Commonwealth's powers over immigration and deportation. The term 'Australian citizen', as it occurred within policy discourse prior to theNationality and Citizenship Act 1948, referred to a British subject born in Australia or recognised as a permanent resident and 'member of the community' (including a naturalised person). There were three administrative civic categories of non-Aboriginal people in Australia before 1948: British subjects with permanent residence (including naturalised people), British subjects without permanent residence, and aliens. British subjects generally possessed full political rights, but only those with permanent residence were considered Australian citizens. Therefore the first category consisted solely of the Australian citizenry; the other two categories were outside the boundaries of the citizenry, although people within them nonetheless resided within the Commonwealth's geographic jurisdiction, and were subject to forms of state management.
In September 1945 Arthur Calwell, the Minister for Immigration 1945–49, proposed to Cabinet that 'Australian nationality' be defined in law. Canada also announced that month that it intended to introduce legislation providing for a separate Canadian citizenship. For Calwell an 'Australian nationality' – he equated nationality with citizenship – would facilitate immigration and deportation, the issue of passports, and the representation of Australians abroad. He proposed a definition of an Australian national as:
- a person born in Australia who has not acquired another nationality,
- a British subject not born in Australia who was not a prohibited immigrant at his time of entry and has resided in Australia for 5 years,
- a person naturalised in Australia who has residence of five years,
- the wife of an Australian national who is herself a British subject resident in Australia,
- children born outside Australia whose fathers at time of birth were Australian nationals.
This proposal provided for little more than a formalisation of the existing de facto regime, although it was motivated by Calwell's nationalism and desire for a separate category of Australian citizenship around which nationalist sentiment could coalesce. However, the matter was deferred, and then postponed pending discussions on nationality and citizenship within the British Commonwealth.19
In February 1947 a meeting in London of 'experts' from the British Commonwealth agreed on a system of nationality and citizenship similar to that adopted by Canada:
The essential features of such a system are that each of the countries shall by its legislation determine who are its citizens, shall declare those citizens to be British subjects and shall recognise as British subjects the citizens of the other countries.20
Australia subsequently legislated in accordance with the principles agreed by the conference. Ann-Mari Jordens has argued that the 'Nationality and Citizenship Act 1948 was not inspired by any significant political pressure to assert a separate identity from that of Britain'; rather, Australia was pushed by the results of the conference.21 Jordens does not acknowledge the nationalism which animated Calwell's citizenship policies and became increasingly evident in his later changes to the process and symbolism of naturalisation, but she is certainly correct in concluding that there was little content to Australian citizenship in 1948. In her account of a multicultural 'notion of citizenship based on equality of rights rather than British culture and ethnicity' it is hardly surprising that policymakers of the 1940s are found wanting.22
The Nationality and Citizenship Act 1948 formalised the existing de facto categories of citizenship. The Actcreated a legal status of Australian citizenship devoid of any new substance which meant no more than the de facto administrative concept that preceded it. Australian citizens were still British subjects, and were only to be distinguished from the general category of British subjects (and Irish citizens) by rights of movement: permanent residence, and departure and return. 'Alien' was given formal definition as 'a person who is not a British subject, an Irish citizen or a protected person'; the 'foreigner' remained defined against British subject status and not against Australian citizenship.23 As a statutory category 'Australian citizenship' was slow to acquire any substance since legislation underpinning political rights and social benefits continued to specify British subjects, rather than Australian citizens, as the category of eligibility into the 1970s. Thus the effect of the Actwas limited to codifying the three civic categories identified above. The rhetorical significance of the Act was greater, and was seen in the new form of naturalisation ceremonies.
Until 1993 citizenship by birth was acquired in Australia under the regime of jus soli (law of the soil). Jus soli prevailed in Britain from 1608 when a test case (Calvin's case) established that anyone born on British soil held British nationality. Thereafter, all people born on British soil were attributed the status of British subjects irrespective of the nationality of their parents, and jus soli applied in New South Wales and later the other colonies from the time of their foundation. Various statutes dealing with endenization, naturalisation and nationality in Britain and the Australian colonies were passed from the 1840s but none disturbed this fundamental principle of British nationality.24 With the Nationality Act 1920 the Commonwealth instituted jus soli under its own statutes, and the Nationality and Citizenship Act 1948 also granted Australian citizenship to all people born in Australia (with a few minor exceptions).25 The great majority of people acquired their status as Australian citizens by birth. Additional provision existed for the formal status of British subject to be attributed to those people born of a British father outside British territory, and the same applied for the status of Australian citizen after 1948.26 Collectively, these people were 'natural-born' Australian citizens.
For those people not born as Australian citizens or British subjects, naturalisation was the only means by which they could acquire citizenship. The civic status of naturalised people was qualified in several important respects. First, during several periods, naturalisation was recognised only within the jurisdiction of the government that granted it: hence, a person naturalised in Britain was not a British subject in Australia and vice versa. This difference in civic status within the Empire was remedied by a scheme of reciprocal recognition set up between some British Empire countries in the 1920s. Until 1904 the same situation existed in Australia between the colonies, where there was no obligation for any colonial government to recognise people naturalised in any of the other colonies as being British subjects, although there were some provisions for reciprocal recognition. This situation was addressed by the Commonwealth's Naturalization Act 1903 which deemed all people who had been naturalised in any state to be British subjects throughout the Commonwealth. A second and more significant discrepancy that detracted from the civic status of naturalised people was the ability of Commonwealth and state governments to discriminate in legislation between natural-born and naturalised British subjects. And third, naturalisation – unlike birth – could be revoked, and the Commonwealth could strip a naturalised person of citizenship and then deport them. Such measures were sometimes taken against people thought undesirable for criminal or health reasons, but more often the reasons were related to the Commonwealth's view of the loyalty of naturalised people. Citizenship acquired through naturalisation, therefore, always retained a provisional quality until 1958 when the Nationality and Citizenship Act was amended so that naturalisation could only be revoked where it had been obtained by fraud.
The complexity of citizenship categories in Australia arose from the disjunction of prevailing conceptions of citizenship and nationality, and the incongruity of the legal category of British subject with the administrative needs of the Commonwealth. The nationality of the Commonwealth's population was bound up in the concepts of intertwined British and Australian nationalisms and imperialism which offered a variety of national identities and definitions. Broadly, Australian nationalism was imagined as a subset of British nationalism over the first decades of the twentieth century, and it gradually lost its British emphasis and came to constitute an independent national ideal. Whereas in the early decades of the century the predominant view of Australian nationalism constructed Australians as British people distinguished by their Australian residence and distance from the centre of the empire, by the later decades of the century Australia was described as an independent nation.
The term 'Australian nationality' entered usage only in the 1940s when the Commonwealth's full sovereignty was realised, but during the 1960s the census continued to require Australian citizens to declare their nationality as British. Calwell talked of Australian nationality in the 1940s, and policymakers in the mid-1950s recognised that, at least in law, Australian citizens could be described as being of Australian nationality, but the term was given no official recognition or meaning and Australian citizens were considered to be of British nationality.27 Not until 1969 did they cease to be British subjects, and retain only the status of British subjects; a semantic change that attracted much general criticism for being confusing and also criticism from the Labor opposition, which regarded the concept 'British subject' as an anachronism in need of abolition. Only then were Australian citizens to be described as such for official purposes rather than as British subjects, and the Nationality and Citizenship Act was renamed the Citizenship Act. The Act was renamed again in 1973: the Australian Citizenship Act.
During the 1960s Australians also began to lose their rights as British subjects in Britain, as the British government fashioned a national citizenship from an imperial one following the disintegration of the British Empire. However it was not until 1984 that Australian citizens ceased to be British subjects altogether.28 Thus the nationalist expectation of the coincidence of citizenship and nationality – of membership and identity – was not fully realised in Australia until the 1980s. Prior to that time citizenship and nationality were never singular concepts in Australia: they were split between Australia and Britain.
Australian citizenship becomes even more complex when its consequences – that is, the rights and obligations attached to it – are considered. The Commonwealth never seriously attempted to imbue citizenship with strong legal implications during the period this guide deals with. Recent writers on citizenship have imposed their theoretical definitions of citizenship over the history of political and social rights and obligations in Australia only to find that citizenship was not the coherent or substantive concept that they expected. Rights and obligations were, and are, defined in an ad hoc manner, and moreover make sense only within the context of liberal discourses of state and citizen.
The legal meaning of Australian citizenship has never been singularly defined, and must, even now, be sought in the common law, and a multitude of Commonwealth and state statutes dealing with immigration, passports, the franchise, jury service, employment in the public service, and social security.29 The absence of a coherent concept of Australian citizenship capturing the whole relationship between citizen and state means that this guide must look widely across governmental agencies and policies to locate those features of the relation between citizen and state generally regarded as relevant to citizenship.
17 Section 117 provides that 'A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State.' This section was a reduced version of a clause proposed by Andrew Inglis Clark (Tasmania) modelled on the Fourteenth Amendment to the American Constitution.
18 G Craven, ed. The Convention Debates 1891–1898, Legal Books, Sydney, 1986. See debate on motion to include 'citizenship' in the list of the Commonwealth's powers: vol. 5, pp. 1750–68, and debates on s. 117: vol. 4, pp. 664–91, and vol. 5, pp. 1780–1802. See commentary by John Quick and RR Garran: The Annotated Constitution of the Australian Commonwealth, Angus & Robertson, Sydney, 1901, pp. 954–9. For more recent accounts see: JA La Nauze, The Making of the Australian Constitution, Melbourne University Press, Melbourne, 1972, pp. 229–32; Helen Irving To Constitute a Nation: A Cultural History of Australia's Constitution, Cambridge University Press, Cambridge, 1997, pp. 156–62; and John Williams, 'Race, Citizenship and the Formation of the Australian Constitution: Andrew Inglis Clark and the "14th Amendment"', Australian Journal of Politics and History, vol. 42, no. 1, 1996, pp. 39–53.
19 Cabinet submission, agenda no. 947, 'Nationality Matters', AA Calwell, Minister for Immigration, 21 September 1945, and memorandum, F Strahan, Secretary to Cabinet to NJO Makin, Acting Minister for External Affairs, 3 October 1945, NAA: A446, 1960/67025.
20 Report of British Commonwealth Conference of Nationality and Citizenship, 26 February 1947, NAA: A467, 82/SF40/1.
24 In Britain, endenization was a legal process for granting certain property and participation rights to aliens, making them 'denizens'. However, denizens did not possess full civic rights. Endenization laws were gradually replaced with naturalisation laws over the second half of the nineteenth century.
26 Nationality Act 1920, s. 6(1b). The paragraph was replaced by the Nationality Act 1925. Nationality and Citizenship Act 1948, s. 11. That Act also allowed for maternal descent where the child was illegitimate.
27 Memorandum, THE Heyes, Secretary of the Department of Immigration to Minister for Immigration, July 1954, NAA: A432, 1961/3191.