'A Doctrinal and Feminist Analysis of the Constitutionality of the Australian Citizenship Revocation Laws' by Matilda Gillis in (2020) 41(2) Adelaide Law Review 449 comments
This article examines the Australian Citizenship Amendment (Allegiance to Australia) Act 2015 (Cth) (the ‘2015 Amendment Act’) and the Australian Citizenship Amendment (Citizenship Cessation Act) 2020 (Cth) (the ‘2020 Amendment Act’) (together, the ‘Citizenship Revocation Laws’). These Amendment Acts significantly extended the ways in which the Commonwealth government could deprive dual citizens of their Australian citizenship. This article argues that a classic doctrinal analysis of the Citizenship Revocation Laws does not give a clear answer as to their constitutionality. Rather, it results in two plausible but opposite outcomes. This article contends that this leaves space for other interpretive pathways and accordingly argues that a feminist approach could provide some useful guidance on the questions of constitutionality under consideration here. This feminist analysis suggests both that the 2015 Amendment Act and 2020 Amendment Act should be considered unconstitutional and, more generally, that Australian citizenship is inviolable.
On 3 December 2015, the Commonwealth government passed the Australian Citizenship Amendment (Allegiance to Australia) Act 2015 (Cth) (the ‘2015 Amendment Act’) which amended the Australian Citizenship Act 2007 (Cth) (the ‘Citizenship Act’) and vastly extended the ways in which dual citizens could lose their Australian citizenship. In so doing, the government framed citizenship as a ‘responsibility’ not a ‘right’, and defined the concept of ‘allegiance’ narrowly. On 17 September 2020, the Australian Citizenship Amendment (Citizenship Cessation) Act 2020 (the ‘2020 Amendment Act’) was enacted, which replaced the ‘operation of law’ revocation of citizenship model in the 2015 Amendment Act with a citizenship deprivation model based on ministerial discretion. The 2015 amendments were passed with the support of both sides of Parliament, and with supporting polls from the Australian public, while the 2020 amendments received little public attention in the first place. Questions, however, still remain as to the limits on the Commonwealth government’s power to remove Australian citizenship.
This article examines what those limits, if there are any, might be. It first sets out the legal and normative conceptions of Australian citizenship and the effect of the Citizenship Revocation Laws on those conceptions. It then undertakes a doctrinal analysis of the constitutionality of those laws and demonstrates that a traditional constitutional analysis, drawing upon principles of statutory interpretation and legal precedent, does not provide adequate guidance in determining the Commonwealth government’s power to withdraw citizenship. A comprehensive review of, and justification for, the application of a feminist approach is not possible here. Instead, this article in turn puts forward the suggestion that a conceptual and historically-based feminist analysis of the issue, drawing on different and diverse branches of feminism, can help both to clarify the nature and existence of constitutional limits and provisionally support a conclusion that Australian citizenship is inviolable. If this conclusion is correct, then citizenship becomes an inappropriate target for government to manipulate in formulating the nation’s strategic and legislative plans.
There is an argument increasingly made that many areas of law can appropriately be subjected to a feminist method and critique, while remaining both ‘authentic’ and ‘legally plausible’, within mainstream thinking. The matter of citizenship deprivation has not yet been considered from a feminist perspective, despite such laws being increasingly commonplace around the world, and despite feminism’s traditional concern with and critique of citizenship matters. This article attempts to rectify this.