Sophia

Sophia, the animatronic ostensibly granted Saudi citizenship, is discussed in 'Sophia the Robot as a Political Choreography to Advance Economic Interests: An Exercise in Political Phenomenology and Critical Performance-Oriented Philosophy of Technology' by Jaana Parviainen and Mark Coeckelbergh in Thiemo Breyer, Alexander Matthias Gerner, Niklas Grouls and Johannes F M Schick (eds) Diachronic Perspectives on Embodiment and Technology (Springer, 2024) 57–66. 

The authors comment 

Controversy arose when a humanoid robot named “Sophia” was given citizenship and did performances all over the world. Why should some robots gain citizenship? Going beyond recent discussions in robot ethics and human–robot interaction, and drawing on phenomenological approaches to political philosophy, actor-network theory, and performance-oriented philosophy of technology, we propose to interpret and discuss the world tour of Sophia as a political choreography: we argue that the media performances of the Sophia robot were politically choreographed to advance economic interests. Using a phenomenological approach and attending to the performance and movement of robots and illustrating our discussion with media material of the Sophia performance, we explore the mechanisms through which the media spectacle and robotic performance advanced the economic interests of technology industries and their governmental promotors.

Golden Passports

'Escaping the Exchange of Information: Tax Evasion via Citizenship-by-Investment' by Dominika Langenmayr and Lennard Zyska (CESifo Working Papers, 2021) comments 

 Over the last decade, the OECD and G20 countries launched various initiatives to promote international tax transparency. In the wake of these activities, countries have signed more than 3000 bilateral tax information exchange treaties; more than 100 countries have committed to automatic exchange of tax information. The exchange of tax information between countries has become the main policy instrument to enforce the taxation of capital income across borders. 

Several recent papers show that while tax information exchange decreases offshore tax evasion at the bilateral level, a large share of tax evaders does not repatriate their funds, but instead finds other ways to hide their money (see e.g. Johannesen and Zucman, 2014; Miethe and Menkhoff, 2019). However, previous literature did not identify how tax evaders circumvent tax information exchange. Our paper fills this gap by suggesting that one such strategy is the use of citizenship-by-investment programs. 

Citizenship-by-investment (CBI) programs offer citizenship rights in return for a financial investment in the country or for a donation as low as US$100,000. If a tax evader uses the acquired citizenship to open a bank account in a tax haven, the tax haven will exchange tax information with the country of acquired citizenship, not the true country of (tax) residency. Thus, CBI programs enable tax evaders to escape tax information exchange. 

We first illustrate the interplay between tax information exchange and citizenship- by-investment programs in an analytical model. The model frames tax evasion as a rational decision. Individuals can evade taxes by transferring money to a tax haven. The risk that the home country detects this tax evasion depends on whether the tax haven exchanges tax information with it, and on whether the individual has acquired a foreign citizenship. We model the agreement to exchange tax information as a Nash bargain between the individual’s home country and the tax haven. We show that high- income individuals evade taxes and the richest evaders acquire a new citizenship to lower the detection probability when evading taxes. The existence of CBI programs has two effects on tax evasion: First, these programs decrease individual detection probabilities (and thus, from the high-tax country’s point of view, expected fines). Second, they make it less likely that countries exchange tax information, as part of the potential revenue gain from information exchange is siphoned off by the CBI country. 

We then provide indirect empirical evidence that CBI programs are indeed (mis)used to circumvent tax information exchange. To do so, we use bilateral, quarterly information on cross-border bank deposits provided by the Bank for International Settlements (BIS). Consider the example of a German who acquires Dominican citizenship for US$100,000 and uses her new passport to open a bank account in Switzerland. With the new citizenship, her deposits in Switzerland will appear in the BIS data as a deposit from Dominica (instead of Germany), even though she continues to live in Germany and is still tax resident in Germany. We thus expect that the deposits in tax havens originating from countries offering CBI programs increase after such programs have been installed. Using regressions with country-pair fixed effects and an event study approach, we find that tax haven deposits from CBI countries increase by about half after the introduction of CBI programs, compared to deposits from countries not offering CBI. Our results are robust to using a large number of country-level control variables and different samples. We find no effect for residency-by-investment programs, potentially because they are less suited to circumvent tax information exchange. 

Our paper adds to two strands of literature. First, it contributes to the literature on individual tax evasion (see Sandmo, 2005; Slemrod, 2007; Alm, 2012, for reviews). Recently, several papers in this literature have evaluated the success of tax information exchange as an instrument to fight offshore tax evasion. TIEAs (Johannesen and Zucman, 2014; Hanlon et al., 2015; Heckemeyer and Hemmerich, 2020; Ahrens and Bothner, 2020), the EU Savings Directive (Johannesen, 2014; Caruana-Galizia and Caruana-Galizia, 2016), the U.S. Foreign Account Tax Compliance Act (FATCA, De Simone et al., 2020), and the OECD’s Common Reporting Standard (Miethe and Menkhoff, 2019; Casi et al., 2020) all decreased offshore tax evasion at the bilateral level. However, several of these studies have found that many tax evaders did not repatriate their funds, but relocated the money to other, non-compliant countries (Johannesen, 2014; Johannesen and Zucman, 2014; Casi et al., 2020) or invested in alternative assets not subject to reporting, such as residential real estate and artwork (De Simone et al., 2020). Overall, there is no evidence that information exchange led to a transition to legality. Our paper contributes to this literature by pointing out a novel way in which tax evaders can circumvent information exchange. 

Closest to our paper, Ahrens et al. (2021) analyze whether tax evaders engage in regulatory arbitrage to circumvent tax information exchange from a political science perspective. They study citizenship- and residency-by-investment programs as well as anonymous trusts and shell corporations as options for such regulatory arbitrage. In contrast to our paper, they find little evidence that CBI programs are used to circumvent tax information exchange. The fundamental difference in the results can be explained by several factors: First, Ahrens et al. (2021) look at over forty citizenship-and residency-by-investment programs together, while we focus on a subset of “high- risk” CBI programs defined by the OECD. Second, they use a smaller sample, focussing on investments in twelve major financial markets, while we focus on investments in tax havens. Thus, while the overall topic is similar, our paper is more narrowly focused on the use of CBI for offshore tax evasion and reaches rather different conclusions. 

As a second contribution, our paper also adds to the small literature studying the economic implications of CBI programs. Xu et al. (2015) discusses recent developments and implications of such programs for the real economy, i.e. risks to macroeconomic and financial stability for the mostly small countries offering such programs. Konrad and Rees (2020) focus on CBI programs in the European Union. Because of free movement in the EU, these programs automatically give a right to settle in any country within the EU. The authors argue that individual EU countries sell their citizenship at prices lower than what would be optimal from an EU perspective, as they do not consider the effect of their CBI programs on other European countries. Parker (2017) points out that such a conflict is inherent in the idea of ‘post-national’ citizenship championed by the EU. Our analytical model argues that the proliferation of tax information exchange made it attractive to offer CBI for tax reasons, and points out that individuals acquiring citizenship do not necessarily relocate to their new country. This idea complements the literature above, which mostly focused on the implications of people relocating after acquiring the new citizenship. 

Section 2 provides some background information on tax information exchange and citizenship-by-investment programs, and Section 3 illustrates their interplay in a simple model. Section 4 presents the empirical setting, including some descriptive evidence. Section 5 discusses the results, and Section 6 concludes.

A study of Vanuatu is noted here. 

The new OCCRP 'Passports of the Caribbean' report notes that Dominica, with a population of around 70,000, appears to have sold upwards of 7,700 passports since 2007.

Epigenetic Citizenship

Epigenetic citizenship and political claims-making: the ethics of molecularizing structural racism' by Jessica P Cerdeña in (2023) 18 BioSocieties 632–655 comments 

Epigenetics has generated excitement over its potential to inform health disparities research by capturing the molecular signatures of social experiences. This paper highlights the concerns implied by these expectations of epigenetics research and discusses the possible ramifications of ‘molecularizing’ the forms of social suffering currently examined in epigenetics studies. Researchers working with oppressed populations—particularly racially marginalized groups—should further anticipate how their results might be interpreted to avoid fueling prejudiced claims of biological essentialism. Introducing the concept of ‘epigenetic citizenship,’ this paper considers the ways environmentally responsive methylation cues may be used in direct-to-consumer testing, healthcare, and biopolitical interactions. The conclusion addresses the future of social epigenetics research and the utility of an epigenetic citizenship framework. 

The website for Chronomics a company that provides direct-to-consumer (DTC) testing for viral antigens and antibodies as well as epigenetic markers features the slogan “Making the unseen actionable.” The company implicitly promises consumers increased understanding of their biologies to spur change. Though the brief banner does not specify an aim toward individual, behavioral improvements or political claims-making, the message is one of empowerment: know your epigenetics and respond accordingly. 

In 2020, bioethicist Charles Dupras published a commentary in Nature Genetics asking whether we are ready for DTC epigenetic testing. He called into question the legitimacy of epigenetic ‘evidence’ of lifetime exposures to stress or tobacco, imagining their use in forensic investigations and asylum evaluations (Dupras et al. 2020). Elsewhere, Dupras argues that emphasis on molecular insult is more likely to generate biomedical interventions to reverse epigenetic variation rather than prompting necessary policy and public health reforms (Dupras and Ravitsky 2016a). He invokes the possibility of discrimination based on epigenetic signaling and questions the moral responsibilities surrounding epigenetics, and whether parents and nation-states should be held accountable for the epigenetic programming of their children and citizens (Dupras et al. 2019, 2018; Dupras and Ravitsky 2016b). 

This paper draws from insights gleaned through the design of a bioethnographic project on intergenerational trauma incorporating epigenetic measures of DNA methylation and neuroendocrine assays alongside anthropological methods of semi-structured interviews. I discuss the repercussions of seeking molecular ‘validation’ for the forms of social suffering currently examined in epigenetics research, including racism, trauma, poverty, and deprivation. I summarize science studies critiques of epigenetics research and its potential to mischaracterize the biological inscriptions of social experiences. Following Dupras, I further anticipate toxic interpretations of findings generated through social epigenetics research that might reproduce racialized claims of (epi)genetic determinism and buttress enduring support for biological essentialism. I advocate for cautious presentation of results and forethought over how these might be used by the public. Finally, building on the concepts of “biological citizenship” (Petryna 2013) and “genetic citizenship” (Heath et al. 2007), I develop the idea of ‘epigenetic citizenship,’ referring to how the molecularization of social suffering further constitutes the bodies of disenfranchised communities within the domain of biopolitical activism and intervention, and further propose scenarios by which epigenetic citizenship may manifest in the future. ...

I use the term ‘epigenetic citizenship’ to describe how individuals may increasingly consider their pliable, molecular selves in lifestyle and health decisions and to further consider how molecular data might be deployed to legitimate biopolitical claims or justify interventions. 

Deborah Heath, Rayna Rapp, and Karen-Sue Taussig proposed the concept of “genetic citizenship” in response to advances in genomics and intensifying interest in the genetic explanations for human health, disease, and ways of being. Heath, Rapp, and Taussig observe that the process of “geneticization” mobilizes researchers, health activists, and public funding sources “as people learn to ‘think genetically,’ to see themselves in terms of genetic attributes and limits—or as investment possibilities” (2007). This ‘auto-geneticization’ engenders novel forms of identity and claims-making, prompting people to contemplate how their genetic selves valence understandings of illness, ability, and advocacy. The authors propose the term “genetic citizenship” to link “discussions of rights, recognitions, and responsibilities to intimate, fundamental concerns about heritable identities, differential embodiment, and an ethics of care” (Heath et al. 2007). Rooted in the discourse of genetic citizenship, ‘epigenetic citizenship’ examines the sociopolitical significance attached not to the fixed, coding sequences inherited by chance, but rather the flexible, chemical modification acquired through violence. 

Epigenetic citizenship is performed at the interface between individuals and healthcare providers, insurance agencies, corporations, governments, and funding organizations; individuals may also enact epigenetic citizenship through self-regulation and behavior change. Epigenetic citizenship relies on Niewöhner’s notion of the “embedded body,” or a body permeated by its past and present social and material environments (Niewöhner 2011). Epigenetic citizenship advances this idea forward, proposing that increased recognition of the interdigitation between molecular body and environment makes way for new interactions between suffering individuals, researchers, and policymakers. As science historian Sarah S. Richardson explains, “Epigenetics does not so much ‘make plausible’ the embedded body; rather, it fixes the molecular gaze on the embedded body… and elevates it to the center of biomedical theory, intervention, and surveillance” (2015, p. 227). 

As epigenetic testing is not yet widespread, iterations of epigenetic citizenship are largely imagined. Here, I discuss these articulations of epigenetic citizenship at the level of the individual—as a healthcare consumer and community member—and the state through case-based scenarios of self-regulation, identity, claims-making, and state control.

Sovereignty

In Indigenous Land and Sea Corporation v Anderson [2022] NSWSC 1650 the NSW Supreme Court has taken judicial notice of the Uluṟu Statement from the Heart. 

It recognises the spiritual sovereignty of ATSI peoples over the Australian Continent and adjacent lands, co-existing with the sovereignty of the Crown.  The judgment will presumably be misread as recognising a non-spiritual sovereignty.

The Court states 

 It is convenient to set out the orders sought by Mr Anderson in his motion (without alteration): 

 

1   That the originating process by the Indigenous Land and Sea Corporation be dismissed in accordance with the NSW Uniform Civil Procedure Rules, Rule 12.11, 1(g) 

 

2   That the claim by the Indigenous Land and Sea Corporation be dismissed on the grounds that the Euahlayi/Yawaalaraay Nation falls within the definition of, Interpretation, 1 (b) of the Foreign States Immunities Act 1985. 

 

3 That this court make a declaration that to proceed with the plaintiff’s case without this court having the competency to adjudicate on Euahlayi laws and customary practices will prejudice the Défense of the First Defendant Michael Anderson and thus be in violation of section of the Commonwealth Racial Discrimination Act 1975. 

 

4 That this court make a declaration that this case cannot proceed without engaging ceremonially educated Aboriginal Senior law men and women who hold the sacred celestial knowledge law and customs. 

 

5 That the court make a declaration that the First named Defendant Michael Anderson’s Nationality is Euahlayi/Yawaalaraay (hereinafter Euahlayi) Dthane (man) 

 

6 That the court make a declaration that the first named defendant Michael Anderson (tribal birth name Ghillar) aka Michael Eckford (Registered Birth name) is the recognised Leader of the Euahlayi/Yawaalaraay Nation as recognised by the Foreign Sovereign Head of the Commonwealth of Australia, the late Queen Ngudthy 11, (for the purpose of observing Euahlayi law and customary practice. It a sign of respect not to name a deceased person) In regard to the recognition of the First Defendant See Cross Claim affidavit of Michael Anderson dated July 21, 2021, to Case No.2020/00363972 annexure C. 

 

7 The Euahlayi/Yawaalaraay Nation does not submit to the jurisdiction of this court but are making this submission in accordance with section 10 (7) (b) of the Foreign States Immunities Act 1985. That is: Section 7) A foreign State shall not be taken to have submitted to the jurisdiction in a proceeding by reason only that: (a) it has made an application for costs; or (b) it has intervened, or has taken a step, in the proceeding for the purpose or in the course of asserting immunity. 

 

8 That this court make a declaration that to proceed with this case number 2020/00363972 will violate section 10 of the Racial Discrimination Act 1975 on the grounds that the court fails in its ability to consider Euahlayi Laws and Customs because these laws and Customs belong to a Foreign Nation who have never been Conquered, ceded, nor acquiesced. 

 

9 Further to this, I respectfully submit that this court does not have jurisdiction to consider the origins of Euahlayi/Yawaalaraay ‘celestial law’ that establishes the laws and Customary practises of the Bhurrah (Peoples) within the boundaries as they are and always will be independent clans’ territories within that Euahlayi/Yawaalaraay boundary. 

 

This is a matter that falls within the same category as ecclesiastical law and does not fit within the scope of civil and common law jurisdiction. 

 

There is a fundamental inconsistency in Mr Anderson’s challenge to the Court’s jurisdiction. He seeks to have the plaintiff’s proceeding dismissed yet, on the other hand, he presses his Cross-Claim and also seeks various declaratory orders as set out in his motion. 

 

In brief, the challenge to jurisdiction raises the following four matters: Whether the Foreign States Immunities Act 1985 (Cth) applies. Whether the Pacific Islanders Protection Act 1872 35 & 36 Vict c 19 (Imp) and Pacific Islanders Protection Act 1875 38 & 39 Vict c 51 (Imp) apply. Related to issue (2), whether Mr Anderson can claim a sovereignty which takes him outside the Court’s jurisdiction. 

 

Whether the Court lacks competency and capability to adjudicate on Euahlayi laws and customary practices. 

 

It is convenient to address each of those matters in turn. 

 

(1) Foreign States Immunities Act 

 

The Foreign States Immunities Act provides for a general immunity of a foreign State from the jurisdiction of Australian courts, except as provided by or under the Act. 

 

There are several reasons why Mr Anderson’s reliance upon this legislation is misconceived. First, there is the fact that Mr Anderson is a party to these proceedings in his personal capacity, being a person occupying the lands without the permission of the registered proprietor. The ILSC did not challenge Mr Anderson’s claim to be the ceremonial Elder of the Ghurrie Clan and recognised ceremonial Elder and Leader of the Euahlayi Nation. The fact remains, however, that he is sued in his personal capacity. He personally does not qualify as a “foreign State” within the definition of that expression in s 3 of the Act, which means: … a country the territory of which is outside Australia, being a country that is: (a) an independent sovereign state; or (b) a separate territory (whether or not it is self-governing) that is not part of an independent sovereign state. 

 

Even if it be assumed for the sake of argument that the relevant State is the Euahlayi Nation and not Mr Anderson personally, the territory to which that Nation relates is not territory which is “outside Australia” for the purposes of the definition of “foreign State” in s 3. The term “Australia” is defined in s 3 as: when used in a geographical sense, includes each of the external Territories. 

 

There can be no question that the reference to “outside Australia” in the definition of “foreign State” is a reference to the country of Australia in a geographical sense. Thus, even though Mr Anderson asserts that the Euahlayi Nation has never been part of Australia in the sense of never having ceded its sovereignty, geographically speaking that Nation’s territory is physically part of Australia. 

 

Secondly, even if, contrary to the above, Mr Anderson could overcome these significant threshold obstacles to his reliance upon the Foreign States Immunities Act, the effect of s 14(1) of that Act is that a foreign State is not immune in a proceeding to the extent to which the proceeding concerns: (a) an interest of the State in, or the possession or use by the State of, immovable property in Australia; or (b) an obligation of the State that arises out of its interest in, or its possession or use of, property of that kind. 

 

There is no doubt that this proceeding relates to the possession or use of immovable property in Australia. 

 

Thirdly, and for completeness, it is also relevant to note the effect of s 10(6)(b) of the Act. It provides that, subject to ss 10(7), (8) and (9), a foreign State may submit to the jurisdiction in a proceeding by inter alia “intervening in, or taking a step as a party to, the proceeding”. As noted above (assuming contrary to the above that Mr Anderson personally is a foreign state), Mr Anderson has taken various active steps as a party to the proceeding, including filing a defence, an amended defence, evidence, and a notice of motion challenging the plaintiff’s claims of privilege in respect of certain documents. These various steps (which are distinct from the motion which challenges jurisdiction) cannot be described as steps taken in “the proceeding for the purpose or in the course of asserting immunity”, as referred to in s 10(7)(b). 

 

(2) Pacific Islanders Protection legislation 

 

As Mansfield J pointed out in Walker v South Australia (No 2) (2013) 215 FCR 254; [2013] FCA 700 at [54], this Imperial legislation was passed to protect the Indigenous peoples of the islands of the Pacific Ocean from kidnapping for the purposes of labour, a practice which is sometimes described as “blackbirding”. The preamble to the 1872 legislation expressly refers to “natives of islands in the Pacific Ocean, not being in Her Majesty’s Dominions” (emphasis added). Section 2 of that Act defined “Australasian Colonies” as including the colonies of New South Wales and Queensland. Those colonies were at the relevant time part of Her Majesty’s Dominions. 

 

The 1872 Act provided in s 3 that it was unlawful for British vessels to carry native labourers unless they had a licence granted, relevantly, by a governor of any of the Australasian Colonies. 

 

The fact that the legislation was directed to islands and places in the Pacific Ocean not being within Her Majesty’s Dominions is also made abundantly clear in s 6 of the 1875 Act. That provision empowered the making of Orders in Council to establish courts of justice with jurisdiction over Her Majesty’s subjects in such islands and places and to impose penalties etc. 

 

I respectfully agree with Mansfield J’s conclusions and reasoning in Walker at [56] as to why this legislation does not apply to Indigenous Australians, including Mr Anderson and/or the Euahlayi Nation: 

 

On their own terms, those Acts do not apply to the Indigenous people of Australia. Their application is clearly with respect to the peoples of the islands in the Pacific Ocean, who did not have the protection of the law. Hence, jurisdiction to try the offences created by the Acts was conferred upon the Supreme Courts of the Australasian colonies. Further, their application is with respect to the islands of the Pacific Ocean “not being within her Majesty’s dominions”. As at the passing of the 1872 PIP Act, the Province of South Australia had been for some time within Her Majesty’s dominion, as had all the other colonies of Australia. 

 

Similar reasoning was applied by McKerracher J in Prior v South West Aboriginal Land and Sea Council Aboriginal Corporation [2020] FCA 808 at [70], with which I also respectfully agree. 

 

(3) Sovereignty 

 

Order 6 sought by Mr Anderson in his motion appeared to raise a claim that the Euahlayi Nation constituted a separate sovereign nation in relation to which the Court had no jurisdiction. This claim also appeared to be supported by parts of Mr Anderson’s affidavit dated 21 September 2022, which included claims that “Sovereignty and Eminent Dominion over the said lands and waters of the Ghurriebhurrah are reserved to the ceremonial Elders” (at [12]) and that “the sovereignty of the Euahlayi/Yawaalaraay Nation continues and that we had Laws and Customs of our own” (at [19]). 

 

In oral address, Mr Anderson relied upon a “Declaration” and a “Declaration of Independence”, which documents appear to have been created on or around 1 July 2013. The Declaration states that the Euahlayi are the original peoples of the land and waters within certain defined territories identified in Sch 1 to the Declaration. The Declaration is signed by various persons. The Declaration of Independence, which is also signed by various persons, states that the “individual members of the Euahlayi State, representing each and all of our clans, are by virtue of our natural and historic inherrent (sic) right, resolve and declare the continuing sovereignty of the Euahlayi Nation, to be henceforth known as the ‘Euahlayi Peoples Republic’”. 

 

Mr Anderson said that copies of both Declarations had been sent to Her Majesty. Mr Anderson did not tender a copy of the letter which he stated he received in reply from Buckingham Palace. 

 

Notwithstanding these matters, and the fact that Mr Anderson also advanced arguments concerning the separate sovereignty of the Euahlayi people in his oral address in chief on the motion, in his oral address in reply Mr Anderson said that “… our argument is not about whether we’re a – about sovereignty. We’re not – that’s not the argument here. The argument here is about whether the Court has the capacity to deal with Yuwaalaraay law and make a decision over the land and the people who belong to the land as to whether or not they are entitled to be on that land. That’s the question here”. 

 

For completeness, however, I will now explain why the sovereignty arguments raised elsewhere by Mr Anderson must fail (as must also be his related reliance on s 10 of the Racial Discrimination Act 1975 (Cth)). 

 

To the extent that Mr Anderson advanced an argument that the Court lacked jurisdiction because the Euahlayi People had a separate sovereignty, the argument must be rejected. I respectfully agree with the reasoning of Mansfield J in Walker at [43] to [47] which is squarely in point: 

 

43 The contention that the Indigenous peoples of Australia constitute a sovereign nation or nations, has been expressly rejected. In Coe v Commonwealth [1979] HCA 68; (1979) 53 ALJR 403 at 408, Gibbs J, with whom Aicken J agreed, held: 

 

The aboriginal people are subject to the laws of the Commonwealth and of the States or Territories in which they respectively reside. They have no legislative, executive or judicial organs by which sovereignty might be exercised. If such organs existed, they would have no powers, except such as the laws of the Commonwealth, or of a State or Territory, might confer upon them. The contention that there is in Australia an aboriginal nation exercising sovereignty, even of a limited kind, is quite impossible in law to maintain. 

 

44 That is consistent with Mabo (No 2). The rights recognised with respect to native title in Mabo (No 2) are, at common law, subject to statutory modification: see at 110-111 per Deane and Gaudron JJ: Like other legal rights, including rights of property, the rights conferred by common law native title and the title itself can be dealt with, expropriated or extinguished by valid Commonwealth, State or Territorial legislation operating within the State or Territory in which the land in question is situated. To put the matter differently, the rights are not entrenched in the sense that they are, by reason of their nature, beyond the reach of legislative power. 

 

45 Mabo (No 2) reveals that, upon the settlement in New South Wales, and by extension later in South Australia, the English settlers brought with them the law of England, so that, at 38 per Brennan J: 

 

[t]he common law thus became the common law of all subjects within the Colony who were equally entitled to the law’s protection as subjects of the Crown. ... Thus the Meriam people in 1879, like Australian Aborigines in earlier times, became British subjects owing allegiance to the Imperial Sovereign entitled to such rights and privileges and subject to such liabilities as the common law and applicable statutes provided. 

 

46 Mason CJ in Coe v Commonwealth [1993] HCA 42; (1993) 68 ALJR 110 at 116 confirmed that Mabo (No 2) is inconsistent with the notion of sovereignty in the Aboriginal people of Australia: Mabo (No 2) is entirely at odds with the notion that sovereignty adverse to the Crown resides in the Aboriginal people of Australia. The decision is equally at odds with the notion that there resides in the Aboriginal people a limited kind of sovereignty embraced in the notion that they are “a domestic dependent nation” entitled to self-government and full rights (save the right of alienation) or that as a free and independent people they are entitled to any rights and interests other than those created or recognised by the laws of the Commonwealth, the State of New South Wales and the common law. 

 

47 That also follows from a series of decisions that say that the application of the laws of the various Australian Parliaments to Indigenous Australians does not depend on the acquiescence or consent of those people: see Walker v New South Wales [1994] HCA 64; (1994) 182 CLR 45 at 48-9 per Mason CJ; McDonald v Director of Public Prosecutions (2010) 26 VR 242 at [6] and [16] per Ashley JA and [191] per Neave JA, Redlich JA agreeing; Jones v Public Trustee (Qld) [2004] QCA 269; (2004) 209 ALR 106 at [14]-[15] per McPherson JA, Williams and Jerrard JJA agreeing; R v Buzzacott [2004] ACTSC 89; (2004) 154 ACTR 37 at [3]-[17] per Connolly J. 

 

It may be noted that similar reasoning was relied upon by Philippides J in Ngurampaa Ltd v Balonne Shire Council [2014] QSC 146 at [12]–[18] in rejecting a similar claim advanced by Mr Anderson on behalf of the plaintiff in that case. I respectfully agree with and adopt his Honour’s reasoning as well as the similar reasoning of McKerracher J in Prior at [64] to [71]. 

 

Nothing said above is intended to dispute the sovereignty of Aboriginal and Torres Strait Islander peoples in a spiritual sense. That particular concept of sovereignty is well-reflected in the following extracts from the Uluru Statement from the Heart, of which the Court takes judicial notice (emphasis in original): Our Aboriginal and Torres Strait Islander tribes were the first sovereign Nations of the Australian continent and its adjacent lands, and possessed it under our own laws and customs. This our ancestors did, according to the reckoning of our culture, from the Creation, according to the common law from ‘time immemorial’, and according to science more than 60,000 years ago. 

 

This sovereignty is a spiritual notion: the ancestral tie between the land, or ‘mother nature’, and the Aboriginal and Torres Strait Islander peoples who were born therefrom, remain attached thereto, and must one day return thither to be united with our ancestors. This link is the basis of the ownership of the soil, or better, of sovereignty. It has never been ceded or extinguished, and co-exists with the sovereignty of the Crown. 

 

(4) Court’s competence or capacity 

 

As noted immediately above, in his oral address in reply, Mr Anderson identified his central argument as whether the Court has the capacity (or competency) to deal with the Euahlayi Nation’s law. That matter is also raised in orders 3, 4, 8 and 9 of his motion, and are elaborated upon in various parts of his affidavit dated 21 September 2022. For example, in that affidavit he claimed that Euahlayi laws and customs are foreign to the English common law, are sui generis and the Court lacked jurisdiction to “define and concluded (sic) the rights and interests of the Ghurrie clan under Euahlayi Law and Customs which are at the heart of the first defendants (sic) Défense and Cross Claim” (without alteration). He submitted that these matters were “more likely to be found in ecclesiastical laws”. He added that, because the Court could only adopt what he described as “a Eurocentric legal view of this case”, this prejudiced the Ghurrie clan’s rights and interests from being considered without apprehended bias.

Identity and Activism?

'The New Right and Aboriginal Rights in the High Court of Australia' by Harry Hobbs in (2022) Federal Law Review (Forthcoming) comments 

In resolving disputes, the High Court of Australia sometimes has cause to expound upon the relationship between the Australian State and Aboriginal and Torres Strait Islander peoples. This article examines overblown and disingenuous New Right criticism directed towards the High Court in the aftermath of judgments deemed favourable to Indigenous Australians. It finds two themes recur in these attacks: that the High Court’s decision is undemocratic, or that that the High Court has acted illegitimately. This article demonstrates that such claims are legally baseless. Drawing on quotes from major players in this debate, the article argues further that beneath this criticism lies a deeper angst over the sovereign foundations of Australia; an anxiety that reappears in arguments against contemporary calls for constitutional reform. As Australia nonetheless inches closer towards constitutional recognition of Aboriginal and Torres Strait Islander peoples, the ferocity of New Right censure suggests that the movement may fear that the Australian people do not share their same suspicions.

Hobbs argues

In the days, weeks and months immediately following the decision, New Right political and legal commentators attacked the High Court on several grounds. The decision was a stunning example of ‘judicial activism’. The majority had produced the ‘the most legally indefensible’, and ‘most radical judgment in Australian history’. Concerns were raised about how the judgment suggested the Court conceived of its role. If High Court justices misunderstood their function and sought to engage in the political sphere, there would be a real danger that the rule of law and democracy in Australia could be under threat. Two solutions presented themselves; both extreme but apparently necessary. If the judges did not voluntarily resign their commission, Parliament should launch impeachment proceedings, with the view of their removal from the bench on the ground of proved misbehaviour. They should be replaced by ‘capital-C conservative’ judges. Alternatively, a referendum should be held to allow the people to have their say and overrule the politicians in robes. If neither outcome was forthcoming, perhaps the country itself might breakup. 

New Right commentators were almost in unison. More in sorrow than in anger they wondered how the High Court could have fallen so far from the days of Chief Justice Sir Owen Dixon, when it was widely regarded as ‘far and away the greatest appellate court in the English-speaking world’? Together they lamented that the Court had ‘abandoned the doctrine of strict constructionalism [sic] ... in the dubious search for contemporary political relevance’. The Court—and Australia itself—was at a crisis point. But what decision had motivated such strenuous criticism? 

In fact, it was three decisions—with the first and third being almost thirty years apart—that bore the brunt of New Right opprobrium. Those decisions were Mabo v Queensland (No 2), Wik Peoples v Queensland, and, most recently, Love v Commonwealth; Thoms v Commonwealth. Although each of these cases raised distinct legal issues, all were fundamentally concerned with the relationship between the Australian State and Aboriginal and Torres Strait Islander peoples. The High Court’s role in articulating that relationship in a way that recognised and respected the rights of Aboriginal and Torres Strait Islander peoples underlay the criticism that the Court received. Of course, these cases are not the only High Court decisions recognising and protecting the rights of Indigenous Australians that have attracted censure by the New Right. That list is far longer. Nonetheless, these three cases are central to understanding—and disarming—that opposition. 

The New Right is a label attached to the conservative political movement that first emerged in the United States in the post-WWII period. Influenced by Austrian political economist and philosopher Friedrich Hayek and United States economist Milton Friedman, the New Right sought to dislodge the post-war consensus and wind back former President Franklin D. Roosevelt’s New Deal. Distinguishing itself from the ‘Old Right’ by a commitment to economic liberalism and a robust defence of the free- market, and from social democratic parties by an emphasis on traditional conservative policies of law and order and support for the family unit, the New Right advocated for a ‘muscular conservativism’. After several decades of growing strength, the movement burst to global prominence with the election of Margaret Thatcher as Prime Minister of the United Kingdom in 1979 and Ronald Reagan as President of the United States in 1980. 

In Australia, the New Right surfaced in the late 1970s and solidified during the 1980s. Drawing support from the right-wing of the Liberal and National parties, as well as mining and farming interests outside parliament, the movement rejected the Australian orthodoxy that had supported state intervention in the economy in favour of widespread deregulation. In opposition at the Commonwealth level for much of this early period,  the Australian New Right imported the language and tactics of the American movement. Proponents claimed that a cadre of ‘self-interested educated elites’ were supporting the ‘unreasonable gains’ of economically and socially marginalised groups made at the expense of ‘mainstream’ Australians. Multiculturalism and the notion of reconciliation with Indigenous Australians were seen as particularly ‘troubling’, ‘not only because of the threats they posed to social cohesion but because of their expense (as “rent seekers”) in an economy that suffered from a lack of competitiveness and was hit by the end of the decade with recession’. Under the prime ministership of John Howard, the New Right became the dominant force within modern Australian conservativism. 

The New Right is generally distinct from but may overlap with ‘constitutional conservatives’. In debate over whether and how to recognise Aboriginal and Torres Strait Islander peoples in the Constitution, a group of legal scholars calling themselves constitutional conservatives have argued against reform that would empower the judiciary, such as through the insertion of a clause prohibiting racial discrimination. For constitutional conservatives, such a clause would undermine parliamentary supremacy and invite inappropriate judicial activism. The New Right also opposes a racial non- discrimination clause, but its concerns are broader. Rather than worried about judicial activism per se, the focus of New Right criticism is outcome oriented. New Right critics may frame their censure as complaints over the most appropriate approach to constitutional interpretation, but as we will see, their real concern appears to be the fact that the High Court has ruled in a way that protects the rights of Indigenous Australians at the expense of ‘mainstream’ Australians. 

The paper is divided into three substantive sections. Part II outlines the three cases that form the background to this study. In Part III, I discuss the criticism directed towards the court in the aftermath of each judgment. This is organised thematically to illustrate that the same arguments reappear in repackaged form. As this study reveals, two key themes recur in New Right commentary. First, that the High Court’s decision is somehow undemocratic, either because it has prioritised the interests of Indigenous Australians over non-Indigenous Australians or because the judges have acted as politicians. Second, that the High Court has acted illegitimately by rewriting Australia’s history or by seeking to impute moral responsibility on contemporary Australians for the ‘supposed’ sins of our ancestors. In either case, New Right criticism fixed on the Court misrepresents the law in rhetorically inflammatory ways that help to fuel their larger political narrative. 

In Part IV, I demonstrate that these same themes are often used to dismiss contemporary calls for broader constitutional reform. Drawing on quotes from major players in the debate, I argue that these attacks appear to be motivated by an anxiety over Australia’s claim to sovereignty. At root in the New Right’s opposition to Aboriginal rights in the High Court is a recognition (unconscious or otherwise) that the sovereign pillars of Australia are both ‘morally suspect’ and ‘legally shaky’. As Australia inches closer towards constitutional reform, the legal baselessness and political ferocity of New Right criticism suggests that perhaps the movement understands that the Australian people do not share their same anxieties.

Cybernetic Citizenship?

'The Rise of Cybernetic Citizenship' by Wessel Reijers, Liav Orgad and Primavera de Filippo in (2022) Citizenship Studies comments 

The global COVID-19 pandemic demonstrates how states and companies mobilise new sociotechnical systems to track, trace, evaluate, and modulate the behaviour of citizens. This development illustrates an already-existing transformation of citizenship governance, which this article captures as the move to “cybernetic citizenship.” Part I explores the concept of cybernetic citizenship, providing an overview of the concepts of “cybernetic” and “citizenship” and synthesising these in a discussion of the cybernetic modulation of citizenship. Part II presents the rise of cybernetic citizenship in the urban realm, zooming in on the case of the Chinese Social Credit System and the way it affects civic life in the urban realm. Part III turns into the normative implications of cybernetic citizenship, arguing that it confronts the idea of citizens as equal, free, and vigilant. It challenges equality by turning rights into ends, freedom by turning status into process, and civic virtue by turning excellence into effectiveness.

The authors argue

Systemic crises like wars and natural disasters tend to propel new waves of technological innovation. This observation is demonstrated by the global COVID-19 pandemic, which has led to massive data collection on citizens, track- and trace applications, and automated means of intervention. A fascinating example comes from China, where the pandemic initially started, which has deployed its emerging Social Credit System (SCS) to fight the pandemic (Knight and Creemers 2021). The SCS uses technological innovations to rate (and often score) citizens to improve public order and trust. For instance, it has made it more socially costly to engage in behaviours that might lead to spreading the disease, such as hiding virus symptoms or evading medical treatment. At the same time, the SCS has been used to relax some restrictions on behaviours that would otherwise be more costly, for example, enforcing financial obligations that are harder to meet due to the economic downfall. The costs and benefits imposed by the SCS are not only monetary, but rather attached to one’s status, rights, and duties as a citizen. 

This article investigates the emerging form of cybernetic citizenship as illustrated by the SCS. It builds on a growing body of literature that addresses the transformation brought about by technology to the concept of citizenship (digital citizenship, Mossberger, Tolbert, & McNeal, 2008; e-citizenship, Dumbrava, 2015; algorithmic citizenship, Cheney-Lippold, 2016). At first, literature focused on the way technologies shaped existing, stable aspects of citizenship, for instance, by looking at the digitalisation of state services and online civic education. More recently, there has been a turn toward questioning the foundations of liberal citizenship, as conceptualised in the tradition that follows T.H. Marshall (1950). Most notably, Marion Fourcade has coined the term “ordinal citizenship,” which implies a transformation of citizenship due to the emergence of large sociotechnical systems that measure, quantify, and evaluate citizens (2021). Some utopian and dystopian scenarios related to the shift in the essence of citizenship due to cybernetic systems were already discussed decades ago by philosophers of technology like Lewis Mumford (1965) and Langdon Winner (1969, 1978). This article continues this strain of thought and draws from recent work in the humanities (Pickering 2010; Hui 2019) that signals the revival of cybernetic thinking. 

The article’s central claim is that, empirically, we are witnessing the rise of cybernetic citizenship as demonstrated by the Chinese SCS and similar sociotechnical systems around the globe; normatively, this development has urgent ethical, legal, and political implications. First, cybernetics professes to be a general epistemology that takes the networked computer as its model (Winner 1969). While citizenship in the current international order of states is still primarily based on the mechanised worldview of enlightenment philosophy, cybernetics challenges this worldview and thereby the sense of citizenship based on it. Second, cybernetics accounts for how sociotechnical systems learn and adapt their behaviour according to contingent inputs (Krivý 2018). Hence, it explains how citizens’ seemingly accidental and contingent behaviours are connected and harnessed for citizenship governance. And third, initially emerging in the wake of computerised systems, cybernetics speaks to a much longer history of philosophical thinking that mobilises the notion of a living machine to understand the institution of citizenship (Mumford 1965). 

The article proceeds as follows. Part I develops the concept of cybernetic citizenship, synthesising the outlines of “cybernetics” and establishing perspectives on “citizenship”. Part II describes the rise of cybernetic citizenship through the lens of the application of the SCS in the urban realm in China. Part III develops a normative analysis of cybernetic citizenship, arguing that it erodes core distinctions that inform modern citizenship: between rights and ends, status and process, and excellence and effectiveness.

Citizenship Shopping

Ius pecuniae again, with the Guardian reporting that 'the sale of passports' (in other words citizenship-by-investment, aka CBI) brought in over US$100m to the Vanuatu government last year, with Investment Migration Insider clasiming the sales accounted for 42% of all Vanuatu government revenue in 2020. Since January 2020 over 2,000 people have purchased Vanuatu citizenship. That nation has 300,000 people. 

'The pros and cons of ius pecuniae: investor citizenship in comparative perspective' (EUI Working Paper RSCAS 2012/14) by Jelena Dzankic comments 

This paper looks at the economic inclusivity of citizenship regulation and draw parallels between different countries offering naturalisation to investors. The underpinning question of the paper is whether investor citizenship has a merely economic dimension in terms of attracting foreign capital, and whether and when there is also a normative argument for making naturalisation easier for investors. By answering this question, the paper highlights the tension in understanding the logic behind investor citizenship programs. That is, in deciding to naturalise investors, states can either maximize economic utility and grant citizenship to investors by waiving all other naturalisation requirements, or uphold genuine ties with the polity as the core of citizenship by retaining them. 

Citizenship denotes the relationship between the individual and the state, including the rights and duties stemming from an individual’s membership in the polity. Citizenship, as such, is a relationship of reciprocity (Held 1991: 20), which has both a political and a normative dimension. The political dimension of citizenship is intimately related to participation, through which individual members of the community exercise their will. The political aspect of citizenship has implications for the nature of the relationship between the individual and the state, as it also entails the individual’s loyalty to the state and his or her identification with the polity. In cases of individuals born into a polity, this loyalty is assumed and exercised through the duties of citizenship (e.g. law abidance, taxation, military duty). Yet, citizenship is exclusionary for those aspiring to become citizens of a polity. This means that gaining membership to a polity entails fulfilling a set of conditions, which are aimed at proving an individual’s commitment to the state he or she aspires to be admitted into. These conditions stem from the normative facet of citizenship and are encapsulated in nationality laws. 

Naturalisation, or the admission of individuals into the polity, is a prerogative of the state. According to Spiro (2007: 34), naturalisation, albeit used only in exceptional circumstances, has existed in Ancient Rome, whereby citizenship could ‘be conferred on an individual for great acts in the service to the community’. Nowadays, naturalisation conditions are far more regulated, and seek to ensure the establishment of genuine ties between the individual and the polity. They often entail the individual’s physical link with the state (residence), his or her knowledge of the socio-cultural norms of the polity (language and culture tests), moral standing (proof of non-conviction), and financial sustainability (proof of income). 

Yet, citizenship by investment can be obtained with or without residence. The investment may grant the individual the right to reside in another state and acquire citizenship subject to residence and other criteria, or it may result in the outright conferral of citizenship. The former is a common practice, adopted by a number of countries worldwide including the United Kingdom, the United States, Canada, Belgium, Australia, and Singapore. These countries offer premier residence1 to investors, with the assumption that the investment will yield significant economic benefits to their country, while also creating strong links between the individual seeking to be naturalised and the state through mandatory residence. In many cases the residence requirement is the same as for ordinary naturalisation, but some countries may act on a case-to-case basis and reduce the residence requirement for investors (e.g., Austria, Belgium). By contrast, in some countries, the investment may confer citizenship upon an individual regardless of other naturalisation criteria. Although many countries have given the state authorities the discretion to naturalise individuals on grounds of cultural, economic, or other achievements, only two countries have developed detailed investor citizenship programs: Commonwealth of Dominica and St. Kitts and Nevis. In Europe, Austria and Montenegro also implement investor citizenship programs, but these are loosely regulated and thus more reliant on discretionary power of the state authorities. In none of these countries are prospective applicants bound by residence. Such a conferral of citizenship is based on the assumption that the investment in itself is a sufficient proof of an individual’s commitment to the new polity. Given the degree of discretion that governments have in deciding upon naturalisation on these grounds, citizenship by investment programs have raised numerous contentious questions, including those related to tax evasion, extradition, and corruption. 

In the context of the competitive market pressures that exist in the era of global economic interconnectedness, citizenship has become a good with which both states and investors seek to optimise their performance. According to Ong (2005: 627), ‘nation-states seeking wealth-bearing and entrepreneurial immigrants do not hesitate to adjust immigration laws to favour elite migrant subjects, especially professionals and investors’. However, there is a manifest normative tension underpinning the decision of some states to grant citizenship to investors and the objections of others to such a practice. Hence a full understanding of the different ways of regulating and practicing of investor citizenship requires an insight into the economic club good theory of citizenship (Buchanan 1965) that provides an argument for the defence of investment-based naturalisation, as well as in the sphere boundary theory (Walzer 1983) which provides a rationale for rejecting it. 

The economic club good theory of citizenship (Buchanan 1965; Frey and Eichberger 1999) offers an explanation as to why states would seek to co-opt individuals who invest money in the polity. Buchanan’s (1965: 4) theory has an economic rationale in that membership in ‘clubs’, as polities indeed behave, should be based on a cost-benefit analysis. That is, polities produce club goods for their members and should therefore select for membership those individuals whose contribution will optimize the production of club goods. According to Buchanan (1965:8), ‘[t]he bringing of additional members into the club also serves to reduce the cost that the single person will face’. This argument also explains the conditions for naturalisation, whereby an individual is often required to comply with certain pecuniary criteria so as to be allowed to become a citizen of a particular state. By contrast, those who are already members of the polity are not required to meet such criteria. The explanation of this asymmetry of the polity’s behaviour towards its members and those aspiring to that status is that only those people whose contribution can help to decrease the shared costs of membership should be naturalised. This also supports Reich’s (1991: 18) ‘idea that the citizens of a nation share responsibility for their economic wellbeing’. As the operation of markets within the polity entails transactions among individuals, companies, other states, etc., in order to maximise their economic security and performance, states seek to ensure that the naturalised individuals will pose no financial burden on their economies. 

The same rationale is used to explain why polities would facilitate the naturalisation of investors. According to Frey, ‘the optimal size of a club is reached when the marginal utility received corresponds to the marginal cost induced by an additional member’ (2000:6). In fact, the contribution to the country’s economy by the investor is disproportionately higher than the contributions of many of those who are already citizens of a given state. Since the benefits of the investment (such as the boost to the economy, opening of new jobs, etc.) vastly exceed the cost of admitting the investing individual to the ‘club’, the addition of that member would optimize or at least enhance the club’s economic performance. Yet, the economic logic behind facilitated naturalisation for investors undermines the very nature of citizenship. According to Walzer (1983), in determining their citizenship, states act as ‘clubs’, and thus have the prerogative to include or exclude prospective members according to their interest. Carens (1987) challenged this observation of Walzer’s (1983) when he claimed that by doing so, states act as enterprises rather than as public communities, thus failing to acknowledge the boundary between the public and the private spheres: ‘in the private sphere freedom of association prevails and in the public sphere equal treatment does’ (Carens 1987: 269). This implies that in deciding on their membership criteria, states are bound to treat all individuals equally. 

However, the conventional argument, also highlighted by Carens (1987; 1992) is that states have the moral obligation to treat as equals only those who are already their members. There is no obligation for states to treat those who want to naturalise equally as those who are already citizens. Yet, states do have an obligation to treat those who apply for citizenship as equals in the sense of not discriminating in morally arbitrary ways between them. Those who are non-members thus need to comply with the same set of criteria in order to become citizens. The departure from this logic, in contemporary citizenship legislation, is made through different criteria for naturalisation for certain categories of non-members, such as spouses of nationals, expatriates, recognized refugees, etc. The reason for facilitating naturalisation in these cases is premised on the assumption of their pre-existing ties with the aspired community of membership (spouses, children, expatriates), or humanitarian arguments and international legal obligations (refugees). These circumstances enable states to waive some of the criteria for admission, for instance, by reducing the residence requirement. 

A similar logic operates in waiving all other criteria in cases of naturalising individuals on grounds of national interest, or exceptional contribution to the state. The logic of equal treatment is overridden by the asymmetry of gains for the community from an individual’s membership, as outlined by Buchanan (1965). In countries that allow facilitated naturalisation on grounds of exceptional contribution to the state, rewarding such achievements is recognition of merit rather than of money or class. Naturalising investors by waiving all other criteria, however, equalises financial contribution with cultural, sports, and educational achievements. The latter are considered reputational gains ’which are not available for purchase’, and thus investment violates the sphere boundary of money (Walzer 1983: 102). The fast-track admission of investors into a polity breaks the equality principle inherent in the citizenship legislation in that only wealthy individuals are able to offer a significant contribution to the state’s economy. Thus, naturalisation of this kind gives precedence to one social class over others, breaching the sphere boundary of ‘money’ (Walzer 1983) by ‘unlocking’ blocked exchanges that limit the dominance of wealth. It reduces citizenship to a commodity that is traded for money and not for genuine ties with the state, as is the case in ordinary naturalisation. 

Moreover, the discretion in the granting of investor has caused political controversies in a number of countries. Corruption and secret deals, which have manifestly happened in cases of investor citizenship,2 violate the sphere boundary of money as ‘political power and influence cannot be bought and sold’ (Walzer 1983: 100). This fact, however, does not imply that naturalising the investor will affect political power by virtue of a single individual’s participation in the polity’s operation. Rather, the marginal influence of a single vote in a polity will be outweighed by the much stronger concern about corruption of those who have had the discretionary power to decide on the admission of such an individual.comments

Judgment

Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 755 is one of those quotable judgments re the AAT, with Perram J stating

[19] I should briefly mention the reasons of the Federal Circuit Court. These were at [59]-[60] and [63]:

Mr Karp’s reference to the evidence of the particular witnesses in paragraph (a) did not identify any material or significant evidence that was not the subject of genuine intellectual consideration by the Tribunal. The Tribunal expressly referred in paragraph 6 of its reasons to the evidence of witnesses and further referred to the evidence of witnesses in its reasons, as summarised above. There is no basis to find that the Tribunal did not take into account the evidence of the witnesses, notwithstanding Mr Karp’s submissions to the contrary. There was no material or significant evidence identified by the witnesses that the Tribunal was required to further expressly engage with in the circumstances of the findings made by the Tribunal in this case. 

The Tribunal does not have to refer to every item of evidence before the Tribunal and is not required to specifically discuss and evaluate every piece of evidence. The Tribunal did refer to the witnesses, and the fifth witness’s evidence was summarised at paragraph 28 of the Tribunal’s reasons. The Tribunal, however, was not bound to accept the witnesses’ opinions. It is apparent that the Tribunal took into account the applicant’s mother’s views as to there being a marriage between the sponsor and the applicant and it also expressly referred to the applicant’s mother’s evidence about having lived with the parties. 

... The Tribunal also made express reference to the number of witnesses advanced in the submissions as having indicated there was a genuine relationship. There is no basis to infer that the Tribunal overlooked this submission or the evidence. The Court does not accept that there was any material or significant evidence that required further express consideration by the Tribunal in respect of the persons identified by the particulars to particular (a). The Tribunal reasons as summarised above evidence that the Tribunal had a genuine intellectual engagement with evidence and submissions advanced by the applicant. No jurisdictional error is made out by particular (a).

[20] For the reasons I have given, this is entirely erroneous. It reflects a complete lack of intellectual engagement with the argument which was being put and is indicative of a judicial method in which meaningless phrases are unthinkingly gathered from the authorities like twigs and patched together in some kind of forensic bird’s nest. Judgments like this are a blot on the judicial department of government. The appeal must be allowed with costs. Mr Karp also raised a similar argument in relation to the evidence of Mr Manjinder Singh and a psychologist, Mr Gachon. It is not necessary to deal with these in circumstances where the decision of the Tribunal is to be set aside. 

[21] For completeness, it should be noted that the next hearing in the Tribunal will be the fourth time it will have attempted to determine the Appellant’s review application according to law. The first decision, made on 2 July 2015, was set aside by consent when the parties agreed in the Federal Circuit Court that the Tribunal had failed to consider the mandatory matters in reg 1.15A(3) of the Regulations, which include the very same question involved in this appeal: ie the social aspects of the relationship. The second Tribunal decision made on 2 November 2016 was set aside when it came to light that the second Tribunal had extensively plagiarised the first Tribunal’s reasons. The third Tribunal’s decision made on 22 November 2019 will now be set aside because it failed to consider evidence which was favourable to the Appellant under reg 1.15A(3). The Appellant’s initial application for review of the delegate’s decision was filed with the Tribunal as long ago as 12 December 2013 and the Tribunal has now been considering this entirely straightforward matter for nearly 8 long years. It is to be hoped that the Appellant, who is still a relatively young man, lives a long enough life to see the Tribunal deal with his review application according to law. It is by no means too much to expect that the Tribunal takes into account the matters which by law it is required to take into account, that it does not unwisely plagiarise earlier decisions which have been set aside and that it remembers to consider not only the evidence which is unfavourable to the Appellant but also that which is in his favour. Public confidence in the Tribunal resides in its reputation for competence. The conduct of the present review application is apt to undermine that confidence.

Citizenship

'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.

Gillis argues

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.

Pseudostates

'Micronations: A lacuna in the law' by Harry Hobbs and George Williams in (2021) International Journal of Constitutional Law comments 

Around 100 active micronations exist across the globe. Led by committed and eccentric individuals, these aspirant or wannabe states assert their claims to sovereignty in myriad ways. In dressing in the language of statehood, they challenge understandings of, and approaches to, international legal personality. In this article we provide the first legal survey of micronations. We develop a conceptual framework to understand what it means to be a micronation, explore their various forms, and analyze key public law issues. Our survey reveals that, although public law has not engaged with this phenomenon, states respond to the assertion of sovereignty by micronations in both benign and violent ways.

The authors argue 

On December 2, 1977, Prince Leonard Casley of the Hutt River Province cabled a telegram to the Governor-General of Australia, declaring war. With a permanent population of fewer than twenty residents, no standing army, and the Province’s 75 km2 territory entirely enclosed by the state of Western Australia, Prince Leonard was unprepared for war. Two days later, on December 4, 1977, he cabled a second telegram announcing the cessation of hostilities. The Australian government responded to neither correspondence, but Prince Leonard nonetheless claimed victory. According to his reading of the Geneva Conventions of 1949, a state should show full respect to a nation undefeated in war. As the Hutt River Province was undefeated, Australia must recognize its sovereignty. 

Australia never recognized the sovereignty of what subsequently renamed itself the Principality of Hutt River, but Prince Leonard is not the only person who has claimed to secede and create his or her own state. Although a new state is, of course, the goal of secessionist movements across the globe, including in South Sudan, Kosovo, Scotland, Catalonia, Quebec, and elsewhere, Prince Leonard’s Principality differs from these efforts. Built around a committed and eccentric individual, possessing only a very small resident population and unrecognized by sovereign states, the Principality was an “aspirant” or “wannabe” state. More commonly, it was known as a micronation. 

In contrast to true secessionist movements, micronations are generally considered trivial and are often ignored by the state. This may be because a micronation poses no security threat to the state and lacks a foundation in domestic and international law for its claim to independence. They are also not recognized in domestic or international forums as nations. Despite this, micronations dress themselves in the language of statehood and perform acts of sovereignty. In doing so, they critique and challenge understandings of and approaches to international legal personality. 

Micronations are an oddity that sits outside conventional understandings of the law. Perhaps for this reason, no significant legal study of micronations exists. In this article, we rectify this by providing the first legal survey of micronations. We define what it means to be a micronation, explore their various forms, and analyze key public law issues relating to their establishment and existence. This provides a rich body of material from which to assess and understand these unique attempts to assert statehood. 

Micronations are diverse in form and function. In Section 2 we develop a conceptual framework for micronations to better understand and interrogate their common features and considerable diversity. We do so by first establishing a definition of what it means to be a micronation, and then situating that definition within understandings of statehood. This enables us to define and better understand micronations before exploring whether and how traditional frameworks of international legal personality relate to or comprehend this phenomenon. 

In Section 3 we explore that diversity in more detail. Drawing on our conceptual framework we survey a wide cross-section of micronations, focusing on the varied motivations for their creation. Owing to the general paucity of scholarly engagement, in many cases we rely on statements from founders and individuals connected to particular micronations. Such stories are part of a micronation’s self-created history and narrative, and are therefore valuable in understanding the reasons why a person chooses to found their own country. Our survey reveals that individuals and small groups from all over the globe purport to secede and establish their own countries for a wide variety of reasons. 

Documenting the sheer prevalence of micronations is valuable in itself. However, uncovering the multiplicity of motivations that underlie the reasons for their formation illuminates our understanding of the legal disputes they provoke. In Section 4 we discuss several key public law issues that pertain to micronations. We examine how micronations seek to assert their sovereignty and independence, as well as how recognized nations respond to such claims. As we note, while state responses range from the benign to the violent, all responses share a commitment to the full enforcement of their laws. ... 

Micronations have escaped sustained attention in the legal literature. There is no legal account that identifies and comprehensively outlines the common features and outer bounds of this phenomenon. In fact, very few non-legal efforts that offer an explanatory account of micronationalism exist. In this section, we examine three non-legal attempts to develop a typology aimed at understanding and explaining micronationalism. In doing so, we explore classificatory accounts that identify commonalities and distinctions among and between micronations with the goal of discerning a legal definition to guide our discussion throughout this article. 

Before commencing, it is important to note that all accounts agree that micronations are distinct from recognized states. While no unambiguously “accepted and satisfactory legal definition of statehood” exists, the Montevideo Convention definition is most commonly adopted. Under the Convention, an entity must meet certain conditions relating to territory, population, government, and a capacity for external relations, in order to be characterized as a state. Recognition by other states is not one of those conditions. Whether and how these conditions relate to micronations is explored in more detail in the following section. 

One of the few approaches to understanding micronations is provided by a geographer. Dallen Timothy offers a broad account that delineates between four distinct models, only two of which are properly characterized as micronations. At one end of Timothy’s spectrum sit internationally recognized, sovereign, non-state entities. These entities do not unequivocally meet the declarative criteria for statehood expressed in the Montevideo Convention, but are nonetheless formally recognized (by at least one other state) as de jure sovereign entities. For this reason, they are not strictly micronations but, usually, states with no control over physical territory. This category includes the Baltic states of Estonia, Latvia, and Lithuania during the Soviet annexation, as well as the Sovereign Military Order of Malta. Founded in 1048, the Order of Malta no longer exercises jurisdiction over any territory and is not strictly a state, but nonetheless retains a “certain international personality.” While the Order once ruled (at different times) Cyprus, Rhodes, and Malta, its physical territory is now limited to two buildings in Rome. Nonetheless, it maintains diplomatic relations with 107 states, has UN permanent observer status, and issues its own passports, stamps, and coins. 

Timothy identifies his second model of non-nations as “semi-legitimate places.” These entities have some historical foundation for claims of independence but, unlike the former category, have not been formally accepted or recognized by the international community. He suggests that the Principality of Seborga, situated in the hills of Liguria, Italy, falls within this category. As we discuss in more detail below, however, the Principality lacks any reasonable legal foundation for independence. A more obvious candidate is the Republic of Somaliland, a semi-autonomous region of Somalia that declared its independence in 1991, claiming to be the successor of the State of Somaliland. The State of Somaliland was the name assumed by the former British protectorate upon independence from the United Kingdom on June 26, 1960. It lasted only five days, joining with the Italian-administered Trust Territory of Somaliland to form the Federal Republic of Somalia on July 1, 1960. Despite arguably meeting international law conditions for statehood, the Republic of Somaliland is not recognized by any other state. Nonetheless, because its claim has some basis in law it is not a micronation. 

The last two models are more traditionally understood as micronations. In the third, Timothy identifies places with little or no claim to historical legitimacy, but which have nonetheless “earnestly attempted to lay claim to national independence.” This archetype includes the most prominent micronations, like the Principality of Hutt River in Western Australia, and the Principality of Sealand off the United Kingdom’s Suffolk coast, as well as lesser-known wannabe states like Liberland on the Danube River. We place the Principality of Seborga within this category.  

Timothy’s fourth example largely eschews control of significant physical territory. Increasingly prevalent, these are “countries” that assert independence “but are in fact little more than social clubs.” While they engage in performative acts of sovereignty, this is conducted primarily for amusement or to seek attention rather than to actively challenge state sovereignty. Typically, the jurisdiction claimed extends to the real property owned by its founder, whether that is an apartment in London, a flat in Sydney, or a house in Nevada. 

Timothy’s typology usefully articulates major distinctions among micronations, as well as between micronations and other “non-nations.” However, it does not clarify all variances between such entities. Finnish artists Tellervo Kalleinen and Oliver Kochta-Kalleinen offer a more pronounced classification, distinguishing between three models: microstates, model-states, and new country projects. According to Kalleinen and Kochta-Kalleinen, microstates are very small countries whose territory is typically less than 20,000 km2. Although they generally meet common international legal definitions of statehood, their sovereignty may or may not be recognized. For instance, while the Vatican City, Monaco, and San Marino are all recognized as sovereign states, the Principalities of Hutt River and of Seborga were and are not. 

Model-states differ fundamentally from microstates. While microstates exercise (or purport to exercise) sovereignty over a small territorial expanse, model-states do not seek to establish legitimacy on the basis of territorial claims. Rather, they are “experiments in forming a state with all of its political institutions” and symbols. Like “real” countries, model-states perform acts of sovereignty; they write constitutions, compose national anthems, design flags, issue stamps and currency, and conduct diplomatic relations with each other (and seek recognition from recognized nations). As the founder of the Principality of Nova Arcardia, Steven Scharff, has explained, model-states are a “diplomatic version of a model railroad.” 

New country projects are similar to model-states in that they also engage in performative acts of sovereignty. However, while model-states generally do not lay claim to substantial physical territory, new country projects involve attempts to actually establish a viable state by “acquiring or creating territory which does not belong to any existing state.” This can involve sea-steading initiatives in which floating structures are “arranged into atolls and archipelagos,” allowing individuals to settle on the high seas outside national jurisdiction, like the Republic of Minerva, and the Floating Island Project’s South Pacific city. It can also include emerging efforts to develop permanent habitation on satellites like the Space Kingdom of Asgardia. Many new country projects have been influenced by libertarian philosophies, and their founders have sought to develop and operate economic schemes prohibited in their homelands. More recent initiatives, like Waveland and Asgardia, may also be inspired by cosmopolitan ideals of an integrated global pan-humanity. Nonetheless, even in these cases, new country projects can carry colonial overlays and resonances. In 2014, for instance, a United States man planted a flag in the Bir Tawil desert, asserting authority over 2060 km2 of land claimed by neither Sudan nor Egypt in order to establish a kingdom and fulfill a promise to his daughter to make her a princess. 

The typologies by Timothy, and Kalleinen and Kochta-Kalleinen, are helpful in identifying distinctions between different forms of micronations. However, they also make clear that there are “incredible differences” and “no clear sense of unity” among this diverse practice. Acknowledging this, sociologist Judy Lattas adopts a simpler definition. Lattas defines micronations as “tiny countries declared by ordinary people in an act that repeats the establishment of sovereign nations, at least in some of its protocols.” Lattas’s approach is valuable as it more clearly identifies what makes micronations distinct from similar entities. Nonetheless, it still fails to capture what we understand by micronations within the context of our legal analysis. After all, some micronations are established by prominent political actors rather than ordinary people. Other micronations might have only a very small resident population but may claim authority over large areas of land, or even outer space. Furthermore, spurred by the growth of the internet, some micronations claim hundreds of thousands of citizens, significantly more than many recognized states. 

This demonstrates the need to adopt a different definition. We define micronations as self-declared nations that perform and mimic acts of sovereignty, and adopt many of the protocols of nations, but lack a foundation in domestic and international law for their existence and are not recognized as nations in domestic or international forums. Our definition simply and accurately encompasses the diversity of micronations; it includes libertarian sea-steading efforts, experimental states formed within college dorm rooms or conceptual art projects, as well as states established to publicize political agendas. It also excludes similar but distinct phenomena, such as secessionist movements, Indigenous nations, microstates, and intentional communities. 

In contrast to micronations, secessionist movements and Indigenous nations enjoy some historical foundation for their assertions of independence, whether or not that claim has been formally recognized by domestic law or the international community. Indigenous nations, for example, are distinct political communities composed of individuals united by identity that have a long history of operating as a distinct society, with a unique economic, religious, and spiritual relationship to their land. Even where the state does not recognize this claim, their legitimacy is based on this status. By contrast, perhaps reflecting the relative moral and political strength of their respective claims and legal foundations, micronations tend to be ephemeral. One of the oldest continuing micronations, the Kingdom of Elleore, was established on the Danish island of Elleore in 1944. Designed to parody the royal traditions and government structure of Denmark, the Kingdom is now only occupied for a week-long celebration each year. 

Our definition also excludes microstates and intentional communities. Like many micronations, microstates have a very small population and control a very small geographic area. However, as “modern protected states,” microstates are internationally recognized sovereign political entities; a status that distinguishes them from micronations. Intentional communities, or communes, are communities of people that live together in common and assert authority to manage their internal affairs autonomously of the state. Such communities can be spiritual, like the Mennonites, or secular, like Twin Oaks Community eco-village, in the United States. In this sense, they are similar to micronations. Importantly, however, intentional communities do not use the language of statehood, instead seeking to operate within the state, albeit on a distinct basis.