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The Vulnerability of Dual Citizenship: from Supranational Subject to Citizen to Subject?

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Citizenship in Transnational Perspective

Part of the book series: Politics of Citizenship and Migration ((POCM))

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Abstract

This chapter provides an overview of the trajectory of the place of citizenship in Australian law today. It argues that the journey has involved travelling from an acceptance and foundation of a form of cosmopolitan or supra-national citizenship, to one of vulnerability for dual citizens. The recent amendments to the Australian Citizenship Act 2007 (Cth) extend the context for stripping dual citizen Australians of their citizenship, and not sole citizens, due to Australia’s “commitment” to the Convention on the Reduction of Statelessness. However, in doing so, it changes the relationship between the individual and the state, reverting Australian citizens back to their “subject” like status in principle, even if not in title.

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Notes

  1. 1.

    (1961) 989 UNTS 175.

  2. 2.

    John Quick and Robert Garran, Annotated Constitution of the Australian Commonwealth (Sydney: Angus and Robertson, 1901).

  3. 3.

    See Official Record of the Debates of the Australasian Federal Convention (Sydney: 1891), Vol I, 93, 546–547; Ibid (Sydney, 1897), Vol II, 101; Ibid (Melbourne, 1898), Vol IV, 664–691; Ibid (Melbourne, 1898), Vol V, 1750–1768, 1780–1782, 2397–2398; Cheryl Saunders, “Citizenship under the Commonwealth Constitution,” Constitutional Centenary Foundation Newsletter 3, 3 (1994), 6.

  4. 4.

    See Kim Rubenstein, “Citizenship and the Constitutional Convention Debates: A Mere Legal Inference?,” Federal Law Review 25 (1997), 295 and some further work I did on the place of race in the 1890s, parts of which also appear in Kim Rubenstein, “Citizenship and the Centenary: Inclusion and Exclusion in 20th Century Australia,” Melbourne University Law Review 24 (2000), 576.

  5. 5.

    Koroitamana v The Commonwealth (Koroitamana) [2006] 227 CLR 31 at 38, citing Singh v Commonwealth (2004) 222 CLR 322, 329.

  6. 6.

    I discuss this in greater detail in Chapter 4 of my book Kim Rubenstein, Australian Citizenship law (Sydney: LawBook Company, 2002), 2nd edition (Sydney: Thomson Reuters, December 2016).

  7. 7.

    See Michael Pryles, Australian Citizenship Law (Sydney, Lawbook Company,1981), 14–16. In particular, Australia was influenced by the common code of the British Nationality and Status of Aliens Act 1914 (UK) 4 & 5 Geo 5, c 17, which was intended to form the basis of a common, uniform law of nationality throughout the Empire. This period is discussed in greater detail in Chapter 3.

  8. 8.

    David Dutton, Citizenship in Australia: A Guide to Commonwealth Government Records (Canberra: National Archives Australia, 1999), 13. See also David Dutton, Strangers and Citizens: The Boundaries of Australian Citizenship (PhD thesis, University of Melbourne, 1998) and David Dutton, One of Us? A Century of Australian Citizenship (Sydney: UNSW Press, 2002).

  9. 9.

    Sir Ninian Stephen, “Australian Citizenship: Past, Present and Future” Monash University Law Review 26 (2000), 333.

  10. 10.

    Commonwealth, Parliamentary Debates, House of Representatives, 30 September 1948, Arthur Calwell, 1060.

  11. 11.

    Ibid .

  12. 12.

    Australian Citizenship Amendment Act 1984 (Cth). For detail regarding the evolution of Australian citizenship law, see Michael Klapdor, Moira Coombs, and Catherine Bohm, “Australian citizenship: A chronology of major developments in policy and law”, Background Note, 11 September 2009 (Canberra: Parliamentary Library, Commonwealth, 2009). See also Kim Rubenstein (ed.), Individual, Community, Nation: 50 Years of Australian Citizenship (Melbourne: Australian Scholarly Press, 2000) and Rubenstein, Australian Citizenship Law in Context

  13. 13.

    The term was removed by the Australian Citizenship Amendment Act 1984 (Cth) which commenced on 1 May 1987.

  14. 14.

    Introduced by Act No 11 of 1966, s 11 (commenced 6 May 1966) and repealed by Act No 70 of 1986, s 11 (commenced 28 August 1986).

  15. 15.

    As a matter of international law, it is for the country of citizenship to determine when a citizen loses his or her citizenship. In this case, neither Greece nor Switzerland mandated the loss of citizenship upon the adoption of a new citizenship.

  16. 16.

    Section 44(i) states: “Any person who is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power; shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.”

  17. 17.

    The second respondent, Mr Delacretaz, was born in Switzerland and in 1960 was naturalised as an Australian citizen pursuant to the Nationality and Citizenship Act 1948 (Cth). The oath or affirmation of allegiance required by the 1948 Act, as it stood in 1960, did not involve the renunciation of prior allegiance. Despite this, Mr Delacretaz, in fact, formally renounced all other allegiance as a preliminary to taking the oath. It appears from the Second Reading speech for the Nationality and Citizenship Act 1967 (Cth) (which introduced the form of oath and affirmation involving renunciation of all other allegiance) that, for some time past, there had been a “practice of requiring applicants…to renounce allegiance to their former countries” in “a prominent and separate part of the naturalisation ceremony”. It was clear from Mr Delacretaz’ naturalisation certificate that that is what happened in his case: see Sykes v Cleary (No 2) (1992) 176 CLR 77 (Gaudron J) at 138–139. The third respondent, Mr Kardamitsis, was born in Greece and became an Australian citizen in 1975 pursuant to the Australian Citizenship Act 1948 and, in so doing, renounced all other allegiance and swore the oath of allegiance in a form similar to, but not identical with, that sworn by the second respondent. The form of oath and affirmation required by the Citizenship Act, as it stood in 1975, was introduced in 1966 when s 11 of the Nationality and Citizenship Act 1966 (Cth) amended the Sch 2 to the 1948 Act “by inserting after the letters ‘AB’…the words ‘renouncing all allegiance’”. At the same time, s 12 of the 1966 Act introduced Sch 3, which contained the form of oath and affirmation required in the case of women wishing to be registered as British subjects without citizenship. This also involved the renunciation of all other allegiance: see Sykes v Cleary (No 2 (1992) 176 CLR 77 at 133 per Gaudron J.

  18. 18.

    See Parliament of the Commonwealth of Australia, Joint Standing Committee on Migration, Australians All: Enhancing Australian Citizenship. Table 6.1 lists countries that allowed dual citizenship at the time of taking evidence. See also 181–188, paras [6.16]-[6.36], which explain overseas practice at the time of the report. See also Kim Rubenstein “From Supranational to Dual to Alien Citizen: Australia’s Ambivalent Journey,” in Citizenship in a Post-National World: Australia and Europe Compared, eds. Simon Bronitt and Kim Rubenstein (Sydney: Federation Press, 2008).

  19. 19.

    In fact, the prevention of dual nationality began before the legal concept of Australian citizenship existed. Section 21 of the Nationality Act 1920 (Cth) provided that a person would lose their British nationality when, through a “voluntary and formal” Act, they became naturalised in a foreign state.

  20. 20.

    See Australia, Senate, Parliamentary Debates, 14 March 2002, proof version, 552–557.

  21. 21.

    Joint Committee on Foreign Affairs and Defence, Dual Nationality, Report (1976), 8. The Committee supported the policy that every person should have one nationality only, but recognised that the holding of dual nationality by some Australian nationals was inevitable given the differences in domestic nationality laws.

  22. 22.

    Department of Immigration and Ethnic Affairs, National Consultation on Multiculturalism and Citizenship, Report (1982). See in particular the discussion on dual citizenship, 28.

  23. 23.

    See Parliament of the Commonwealth of Australia, Joint Standing Committee on Migration, Australians All: Enhancing Australian Citizenship (1994), Ch 6, where it is stated that the issue of dual citizenship attracted most attention throughout the inquiry. See also Australian Citizenship Council, above n 97, 60–66 where it is stated that nearly three-quarters of the submissions to the Council addressed the issue of loss of Australian citizenship upon the acquisition of another. The Council sets out in detail many personal comments received regarding the consequences of s 17, 62–63.

  24. 24.

    Parliament of Australia, Standing Committee on Legal and Constitutional Affairs, Aspects of Section 44 of the Australian Constitution, July 1997.

  25. 25.

    This is because, according to international law, it is up to each state to determine under its own law who are its nationals.

  26. 26.

    Parliament of the Commonwealth of Australia, Joint Standing Committee on Migration, Australians All: Enhancing Australian Citizenship (1994), para [6.90], 206.

  27. 27.

    Australian Citizenship Council, above n 97, 65.

  28. 28.

    Kim Rubenstein, “Why We Are Not All Born Equal”, Opinion Piece, The Age, 1 July 1999; Kim Rubenstein, “Let’s Face It. Today We’re Citizens of the World”, Opinion piece, The Australian, 22 May 2001; Kim Rubenstein, “Loyalty and Membership: Globalization and its Impact on Citizenship, Multiculturalism, and the Australian Community,” in Political Theory and Australian Multiculturalism, ed. Geoffrey Braham Levey (New York: Berghahn Books, 2008), 171.

  29. 29.

    Department of Immigration and Multicultural Affairs, Loss of Australian Citizenship on the Acquisition of Another Citizenship, Discussion Paper on Section 17 of the Australian Citizenship Act 1948, June 2001.

  30. 30.

    The Discussion Paper led to a detailed response from the Southern Cross Group. The Group submitted to the Department a comprehensive document entitled “Section 17 of the Australian Citizenship Act 1948; Grounds for Appeal and Associated Issues”, 6 July 2001. This is available on their website http://www.southern-cross-group.org See also Chapter 7 at [7.5.1].

  31. 31.

    The Australian Citizenship Legislation Amendment Act 2002 repealed section 17 through Schedule 1, item 1.

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      Author information

      Authors and Affiliations

      1. ANU College of Law, Australian National University, Canberra, Australia

        Kim Rubenstein

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      1. Kim Rubenstein
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      1. Department of History, Hong Kong Baptist University, Kowloon Tong, Hong Kong

        Jatinder Mann

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      Rubenstein, K. (2017). The Vulnerability of Dual Citizenship: from Supranational Subject to Citizen to Subject?. In: Mann, J. (eds) Citizenship in Transnational Perspective. Politics of Citizenship and Migration. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-319-53529-6_13

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