Crock, Mary --- "Australian Citizenship Law in Context by Kim Rubenstein" [2003] SydLawRw 7; (2003) 25(1) Sydney Law Review 125

AUSTRALIAN CITIZENSHIP LAW IN CONTEXT by Kim Rubenstein, Lawbook Co., 2002, 329pp, ISBN 0 455 21759 9

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Australia’s origins as a federation of British colonies seems to have engendered a certain ambivalence in notions of ‘citizenship’ in this country. While the Australian Constitution set all the parameters necessary for the creation of a new nation in 1901, it did not create the legal status of Australian citizen. As Kim Rubenstein documents in her excellent study of citizenship law in Australia, the Constitution is strangely silent on what is required for a person to be regarded as a constitutent member of the Australian community. It was not until 1948 that the formal integers of citizenship in this country were codified into law with the enactment of the Australian Citizenship Act 1948 (Cth).

The failure to embrace a notion of Australian citizenship at Federation did not just create ambiguities for those seeking admission to Australia. Australians have also been slow and at times conflicted in their attempts to articulate what it means in legal, social and cultural terms to be a citizen. Rubenstein describes the social aspects of citizenship as entitlement to benefits and/or inclusion in a range of activities, which are expressive of membership of a community. In this regard, she provides readers with a neat introduction to the discourse on citizenship as a normative construct, asking what citizenship does or should mean in real terms as well as in a formalistic, legal sense. Australian women were among the first in the world to win the right to vote — the most obvious example of an activity open to citizens. Yet, many would argue that female suffrage did not bring with it the type of citizenship enjoyed by men in Australia. It is only in recent times that attention has been paid to the differential ability of women and of various minority groups to participate in the public process integral to citizenship as active membership of a community.

In recent years, Rubenstein has established herself as a scholar of Australian citizenship in all of its varied meanings — legal and normative. Her book brings together the fruits of her doctrinal and theoretical research. The earliest, and in my personal view, most interesting, chapters of the work examine the evolution of the legal concept of Australian citizenship. She provides a fascinating account of the Convention Debates that accompanied the drafting of the Constitution, drawing out explanations of why a definition of citizenship never made it through to the final document. She argues convincingly that the silences in the Constitution on citizenship were deliberate, designed as exclusionary devices that worked against the interests of Australia’s first peoples as well as against migrants from cultures that differed from the Anglo-Celtic norms of the first settlers. This theme of citizenship as both an inclusionary and exclusionary device recurs throughout the book.

In view of the current, pointed, conflict between the courts and the government in matters pertaining to immigration control, the trust placed in the judiciary in the early days looks quite extraordinary. Without express legislation governing citizenship, it fell to the courts to determine who was or was not a constituent member of the Australian community. The exclusionary device was an apparently colour-blind ‘dictation test’ whereby ‘immigrants’ were required to write out at dictation 50 words in an European language. In ruling on who was or was not an immigrant for these purposes, the courts established the parameters of the White Australia Policy. The early cases confirm that the white, Anglo-Saxon judges generally used self-referential standards in distinguishing between immigrants (who were required to submit to the dictation test) and ‘non-immigrant’ persons who could not be tested as a matter of law. The latter group might be entering Australia without English language skills, after a long absence or even for the first time; yet because of their appearance or heritage they were deemed to be ‘returning home’.[1] In her excellent discussion of Re Patterson; Ex parte TaylorT[2] Rubenstein traces the contemporary resonances of these historical antecedents. In that case the High Court recognised that long-term British subjects lawfully resident in Australia hold a constitutional immunity from deportation or removal from the country. The case created a new class of non-removable non-citizen, recognising that British nationality until recent times had a status in Australia that was equated with Australian citizenship. Her discussion of Australian ‘subjecthood’ before the enactment of the citizenship laws of 1948 builds on the work of Chesterman and others[3] who have demonstrated the inequities of the early laws for those who did not fit the paradigms for membership and participation of (White) Australia.

The central chapters of the book are devoted to the ‘black letter’ of contemporary citizenship law. Chapter 4 contains a wealth of information about both the evolution and current interpretations of the Australian Citizenship Act 1948 (Cth). It is this part of the book which most clearly succeeds the work of Michael Pryles whose text on Australian Citizenship was published in 1981.[4] The chapter concludes with reference lists of cases that have been decided on individual sections of this Act.

Rubenstein turns her attention to citizenship as a normative concept in Chapter 5 which is entitled ‘The Legal Consequences of Citizenship’. The most interesting parts of this chapter are at the beginning where the author explores different theories about citizenship, asking basic questions about why notions of citizenship might be useful as a device for bringing communities together and for binding communities in common enterprise. The bulk of this chapter is devoted to what Rubenstein terms the ‘reality’ of citizenship. She examines the benefits and burdens of the legal status by cataloguing all the pieces of legislation that operate to create the rights and obligations attendant upon citizenship in Australia. The author’s research is impressive in its coverage of Commonwealth Acts of Parliament, although the fluency of the chapter is hampered somewhat by her taxonomical approach. One suggestion may be that the listing of data without critical or analytical comment is done more appropriately through the use of appendices. This treatment of Parliament’s characterisation of citizenship is then balanced with a discussion in Chapter 6 of how the High Court has treated notions of citizenship. Looking at several hundred High Court decisions, she draws out the subtle differences in the way the court uses the term citizen, developing her theme of the varying meanings of the term and the complicated notion of membership with which the High Court has to contend.

The book concludes with a brief chapter on the future of Australian citizenship, incorporating interdisciplinary material about globalization and its impact upon citizenship and drawing together her concerns for a more inclusive approach to Australian citizenship. Rubenstein discusses the continuing uncertainties that flow from the Constitution’s failure to deal expressly with matters pertaining to citizenship. One enduring issue relates to the extent to which the power to legislate with respect to nationalisation and aliens implies a power to revoke as well as grant citizenship, given the ruling in Patterson; Ex parte Taylor. The High Court has indicated recently that the special status afforded British nationals who have spent many years in Australia does not extend automatically to non-citizens of other nationalities.[5] However, the diversity of the rationes in Patterson’s case make it difficult to determine how the High Court will respond to future attempts to deport permanent resident ‘aliens’ who have become fully integrated into the Australian community by virtue of the length and nature of their tenure in the country.

The final chapter also explores the impact of globalisation on citizenship, both within Australia and in more general terms. Australia’s response to the pressures of the changing world has been mixed. On the one hand, amendments to the Australian Citizenship Act in 2002 permitted Australians to acquire second or subsequent citizenships without losing their Australian nationality.[6] On the other side of the leger is the zenophobia and raft of defensive, introspective legislation excited by the ‘Tampa’ affair. The advent of the new millenium also saw the imposition of immigration barriers for New Zealanders wishing to cross the Tasman to live in Australia, effectively removing the quasi-citizen status enjoyed by nationals of Australia’s most culturally aligned neighbour.[7] Rubenstein concludes with a discussion of the challenges to democratic governance posed by the globalised power of multinational business, and the concentration of wealth and power in fewer and fewer states and individuals. She writes:

There needs to be a conscious and active commitment to linking citizenship in the twentieth century global context to substantive political participation of all groups within society.

She applies her prescription for the future at both national and international levels, demanding the recognition and redress of major societal power imbalances, through measures designed to expand the range and nature of groups allowed to participate in critical decision-making processes. As the world stands on the brink of serious conflict of global proportions, it is heartening to find a young academic who still dares to dream.

This book should become a standard reference text for both practitioners who need to know about citizenship law, and for researchers and others with an interest in policy development or citizenship theory. There is considerable challenge in trying to bring together a discussion of ‘citizenship’ given the wide diversity of meanings that are ascribed to the term, and the variety of disciplines for which the concept has importance. The author has walked the line between theory and practice well. The result is a book that is both instructive and interesting. It is deserving of a wide readership.

MARY CROCK
Senior Lecturer, Faculty of Law, University of Sydney

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[1] See Kim Rubenstein, Australian Citizenship Law in Context (2002) at 58-61.

[2] (2001) 75 ALJR 1439.

[3] See John Chesterman & Brian Galligan (eds), Citizens Without Rights (1997).

[4] See Michael Pryles, Australian Citizenship Law (1981).

[5] Re Minister for Immigration and Multicultural Affairs; Ex parte Te [2002] HCA 48; Re Minister for Immigration and Multicultural Affairs; Ex parte Dang [2002] HCA 48.

[6] See Australian Citizenship Amendment Act 2002 (Cth), which repealed s17 of the Australian Citizenship Act 1948. The amending Act came into operation on 4 April 2002.

[7] See Rubenstein, above n1, 293-4.