Gender and Soft Decertification

'Abolishing legal sex status: The challenge and consequences of gender-related law reform', the 2022 final report of the UK Future of Legal Gender Project 2018-2022 states 

 1. The Future of Legal Gender was a collaborative research project, funded by the Economic and Social Research Council, UK, that ran from May 2018 until April 2022. It explored, from a social justice perspective, the legal, social, and policy implications of reforming the current system in England & Wales which requires everyone to have a legal sex. 

2. Having a legal sex begins with birth registration as female or male and continues over a lifetime unless a person formally transitions. Obtaining a Gender Recognition Certificate under the Gender Recognition Act 2004 changes a person’s gender and their legal sex. Otherwise, the presumption, in law, is that a person’s gender is the sex they are registered with at birth. 

3. Legal sex and gender contribute to who we are as legal subjects. They affect how we are treated, and the opportunities that we have, as this report explores. More generally, legal sex status contributes to the social development of women and men as two separate groups of people. It suggests that both sex and gender matter – not simply for remedying inequality but as core settled aspects of who we are. 

4. To explore whether the current system of assigning people a legal sex and gender status should be dismantled, and the challenges and potential difficulties this proposal raises, we undertook extensive research, involving several different methods (described in more detail in the appendix). This included a survey eliciting over 3,000 responses; 200 interviews with government officials, trade unions, regulatory bodies, community organisations, service providers, academics, lawyers, and general publics; and iterative focus group discussions and workshops with lawyers, academics, legal drafting experts, NGOs, and public officials to explore the principles of decertification emerging from our research. 

5. Our research identified benefits to decertification. These included: dismantling a legal system which formally places people, from birth, in unequal social categories of female and male; supporting greater self-expression – free from gender constraints; and removing the legal burdens currently placed on people who want state recognition of a change in their sex and gender status. 

6. Concerns about decertification also emerged from our research. These concerns mainly related to gender and sex-specific services, data collection, violence, and positive action. Some research participants worried that measures to abolish sex as a legal status would make it harder to retain provision and spaces based on distinctions between women and men (or females and males) and that this would disadvantage women. 

7. Our research identified some ways of tackling these concerns. These strategies build on current practices of ‘soft decertification’ as public bodies and other organisations and agencies respond to users, staff, and clients who self-identify outside of a binary framework of gender anchored in the sex registered at birth. However, the hollowing out of legal sex has also faced opposition from groups who assert the importance of attending to women as a class defined by their sex. During this research, public bodies described how they navigated tensions between these competing demands, amid divergent interpretations of the relevant law. 

8. Advancing gender equality as a broad, intersectional agenda does not just depend on state action. It also does not depend on equality law alone; other laws also shape gender relations and whether people can live in gender nonconforming ways. However, equality law has become a site of intense debate. Our research explored how different categories in equality law operate and questioned whether people need to be legally assigned to a category, such as gender or sex, to access legal remedies. Other equality grounds, such as race and sexual orientation, operate without requiring these ‘protected characteristics’ to be part of a person’s legal identity. 

9. Several interviewees suggested that the present political climate was not a suitable or safe one in which to question the architecture of equality law or to radically alter gender and sex categories. Decertification may therefore be better approached through the prism of ‘slow law’. This involves transitional legal reforms (e.g. making gender transitioning easier, and legally recognising other gender identities) while also attending to far-reaching structural concerns of poverty, violence, exclusion, and exploitation. Decertification does not rely on these concerns being resolved. However, what decertification means and how it will work will be shaped by the social policy landscape within which its implementation is situated. 

10. In section 9, we set out some possible principles for a law decertifying sex and gender.

Section Nine goes on to state

Legislative principles for the decertification of sex and gender 

The principles that follow provide an example of what decertification could entail if it was introduced as a legal reform. The questions listed identify areas for further discussion and consideration. 

Aims of decertification:

1. To abolish a legal system of certification that treats sex and gender as legally assigned or registered qualities of individuals; 

2. To contribute to the dismantling of hierarchical structures based on gender and sex, that also encode and institutionalise difference; 

3. To support the lives of people whose gender leads them to experience exclusion or other forms of disadvantage; 

4. To contribute to the undoing of social injustices and inequalities more broadly. 

Principles of decertification law: 

1. Legal registration of sex and gender is abolished. 

Sex and gender status would no longer be legally established or assigned (for instance by registering sex on birth certificates). Laws such as the Gender Recognition Act 2004, that provide a mechanism for changing legal sex and gender status, would become redundant. Sex observed at birth could continue to be recorded, in aggregate, for planning and statistical purposes, but would no longer form part of an individual’s legal status. 

Existing legal registration of sex and gender (through birth certification or Gender Recognition Certificate) would no longer carry legal effect. 

2. Introduction of a new ground of gender in equality law. 

Gender remains a legally important term for tackling social subordination, discrimination, violence, and other injustices, including through equality law. Legal use of the concept of gender can also encompass inequalities that relate to forms of embodiment associated with sex. The current grounds of ‘sex’ and ‘gender reassignment’ in the Equality Act 2010 would be merged to form the ground of ‘gender’ as a ‘protected characteristic’ for discrimination, harassment etc. and the public sector equality duty. Recognising gender as a ‘ground’ of inequality and discrimination, i.e. the basis on which inequality and discrimination take place, does not require individuals to be legally assigned to specific gender categories. Employers, service providers, and others also cannot require people to dress or behave differently on grounds of gender. 

Question 

Should gender itself be legally defined? The Equality Act 2010 currently adopts different approaches to different grounds of inequality. In some cases, it works by identifying member classes that together comprise the overall category (e.g. for sex and sexual orientation); in some it describes component elements of the category (e.g. race). As gender’s meaning is in flux, one option is to leave its definition to evolving case-law (as with the ‘protected characteristic’ of religion and philosophical belief). However, since the scope of gender as a legal ground is currently in dispute, an alternative option is to provide a non-exhaustive legislative list of component elements. This could include bodily sex, gender non-conformity, norms and expectations relating to women and men, and social transitioning. 

3. Gender-neutral legal drafting. 

Current ‘gender specific’ terminology includes mother, female, father, male, woman, man, opposite sex, same sex. Building on existing practice, where it is necessary to use pronouns in legislation, gender-neutral pronouns (e.g. they, them, their) should be used except where this leads, or contributes, to structural inequality, other injustices, or to lack of legislative clarity. In contexts where it is legally important to name physical processes with gendered meanings, this can be done without using an explicitly gendered language (e.g. gestational or birth parent rather than mother or woman. This recognises that people other than women also become pregnant). 

4. Legal right to organise gender-specific provision for specific purposes. 

Gender-specific provision, activities, and membership criteria would remain legally valid where this is done to address social subordination, unfairness, violence, or harassment (for instance, women’s domestic violence shelters, women’s sports, community provision for nonbinary and agender young people etc). 

Question 

Should gender-specific provision also be permissible in other circumstances, for instance: • To establish or maintain personal dignity in conditions where mixed gender provision is perceived (by the individual concerned or according to prevailing social norms) as demeaning, embarrassing or uncomfortable (e.g. in certain hospital wards)? • By small, informal organisations or those not in receipt of public or commercial funds, even where these are not intended to address social subordination, unfairness, violence, or harassment (e.g. a men’s tennis club)? 

5. Self-identification. 

Decertification introduces a presumption of self-identification in determining ‘gender’ category membership in line with certain other legal categories, such as sexual orientation and race. 

The term ‘gender-specific’ refers to the use of single or multi-gender categories for provision, activities, and data collection by organisations and individuals, which do not extend to include all gender-based categories. ‘Subordination’ refers to rules, decisions, policies, and practices that sustain, contribute, or lead to socially patterned asymmetries of power in relation to resources, treatment, and regard. 

The term subordination is closely linked to inequality. What it emphasises is the processual character of inequality.  However, it recognises that: a) unlawful discrimination may relate to physical embodiment and/ or others’ perceptions in ways that diverge from self-identification; b) taking up gender-specific opportunities or benefits through affirmative action may also require demonstrated evidence of disadvantage based on gender or a capacity and readiness to represent subordinate and marginalised gender experiences; c) gender-specific provision may draw on alternative or supplementary criteria to self-identification in relation to selecting staff, users, and volunteers (e.g. relevant work experience, suitability). However, evidentiary requirements that undermine a person’s wellbeing and dignity are not acceptable. 

Question 

If alternative or supplementary criteria to self- identification, by an organisation or individual service provider, are legally permitted, should they be subject to regulatory oversight (e.g. by an equality commissioner, specialist tribunal, or court)? 

6. Data collection can continue to use gender- based categories where appropriate, for instance a government survey on homelessness or pay. Questions about gender will normally rely on self-identification. On occasion, other kinds of data may be more useful, e.g. based on service provider or employer perceptions of the gender composition of their users and workplace. Data-gathering in relation to embodied sex should take account of variations in sex development (also referred to as intersex) and the diversity of human bodies. For medical purposes, good practice means asking questions at a higher level of specificity. ‘Are you menstruating?’ rather than: ‘what is your sex?’ since the sex category elicited by this question may not provide useful information on the body that someone has. 

7. Harmonisation. 

Existing laws should be revised to align with the principles for the decertification of sex and gender. Marriage, for instance, should take a single unified form, merging the currently separate legal provisions for ‘same-sex’ and ‘opposite-sex’ marriage. 

8. Levelling up. 

Welfare-related laws that require revision because of decertification should be revised in ways that enhance rather than reduce public provision (e.g. the definition of overcrowding should be extended to two persons of ‘any gender’ who are over ten and share a room, see Housing Act 1985, s. 325). 

9. Recognising plurality. 

Where law uses the terminology of ‘same sex’ and ‘opposite sex’ (e.g. definition of ‘sexual orientation’, Equality Act 2010, s. 12), or assumes that there are two gender statuses, this should be amended to recognise plurality.

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.

Digital Identity

The Explanatory Memo for the Identity Verification Services Bill 2023 (Cth), ahead of the foreshadowed privacy reforms noted in the preceding post, states 

1. Secure and efficient identity verification is critical to minimising the risk of identity fraud and theft, and protecting the privacy of Australians when seeking to access government and industry services and engage with the digital economy. The identity verification services are the only national capability that can be used by industry and government agencies to securely verify the identity of their customers. 

2. Identity verification services are a series of automated national services offered by the Commonwealth to allow government agencies and industry to efficiently compare or verify personal information on identity documents against existing government records, such as passports, driver licences and birth certificates. 

3. 1:1 matching services (the Document Verification Service and the Face Verification Service) are now used every day by Commonwealth, State and Territory government agencies and industry to securely verify the identity. In 2022, the DVS was used over 140 million times by approximately 2700 government and industry sector organisations, and there were approximately 2.6 million FVS transactions in the 2022-23 financial year. 

4. Examples of the current uses of the DVS and FVS include:

• verifying the identity of an individual when establishing a myGovID to access online services, including services provided by the Australian Taxation Office 

• financial service providers, such as banks, when seeking to verify the identity of their customers and to meet the 'know your customer' obligation under the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) 

• Government agencies when providing services, disaster relief and welfare payments, and 

• Commonwealth, state and territory government agencies verifying identity in order to provide or change credentials. 

5. The Identity Verification Services Bill 2023 establishes new primary legislation that provides a legislative framework to support the operation of the identity verification services. The Bill will support the efficient and secure operation of the services without compromising the privacy of the Australian community. 

6. The IVS Bill will:

• authorise 1:1 matching of identity through the identity verification services, with consent of the relevant individual, by public and private sector entities. This will be enabled by: o the Document Verification Service which provides 1:1 matching to verify biographic information (such as a name or date of birth), with consent, against government issued identification documents; o the Face Verification Service which provides 1:1 matching to verifiy biometric information (in this case a photograph or facial image of an individual), with consent, against a Commonwealth, state or territory issued identification document (for example, passports and driver licences); and o the National Driver Licence Facial Recognition Solution which enables the FVS to conduct 1:1 matching against State and Territory identification documents such as driver licences. 

• authorise 1:many matching services through the Face Identification Service only for the purpose of protecting the identity of persons with a legally assumed identity, such as undercover officers and protected witnesses. The protection of legally assumed identities will also be supported by the use of the FVS. All other uses of 1:many matching through the identity verification services will not be authorised, and will therefore be prohibited. 

• authorise the responsible Commonwealth department - in this case the Attorney-General's Department - to develop, operate and maintain the identity verification facilities (the DVS hub, the Face Matching Service Hub and the NDLFRS). These approved identity verification facilities will be used to provide the identity verification services. These facilities will relay electronic communications between persons and bodies for the purposes of requesting and providing identity verification services. 

7. Subject to robust privacy safeguards, the Department will be authorised to collect, use and disclose identification information through the approved identity verification facilities for the purpose of providing identity verification services and developing, operating and maintaining the NDLFRS. Offences will apply to certain entrusted persons for the unauthorised recording, disclosing or accessing protected information. 

8. The Bill ensures that the operation the identity verification services and requests for the use of those services are subject to privacy protections and safeguards. These include consent and notice requirements, privacy impact assessments, requirements to report security breaches and data breaches, complaints handling, annual compliance reporting and transparency about how information will be collected, used and disclosed. Furthermore, privacy law and/or the Australian Privacy Principles will apply to almost all entities that seek to make a request for identity verification services. These privacy protections and safeguards will be set out in participation agreements. 

9. Government authorities that supply identification information that is used for the purpose of identity verification services will also be subject to the privacy protections and safeguards captured in the participation agreement. Breaches of participation agreements can lead to suspension or termination of the agreement, meaning that the entity would no longer be able to request identity verification services. 

10. States or territories seeking to contribute to the NDLFRS will be subject to privacy obligations and safeguards, which are required by the Bill and will be set out in the NDLFRS hosting agreement. 

11. The Bill requires parties to the agreement to agree to be bound by the Privacy Act or a state or territory equivalent, or agree to be subject to the Australian Privacy Principles. The Bill requires state or territory authorities to inform individuals if their information is stored on the NDLFRS (and provide for a mechanism by which those persons can correct any errors), inform the Department and individuals whose information is stored on the NDLFRS of any data breaches, establish a complaints mechanism, and report annually to the Department on the party's compliance with the agreement. The Bill enables states and territories to limit the use of identity information stored on the NDLFRS, and requires the Department to maintain the security of the NDLFRS. The Department may suspend or terminate access to the NDLFRS in the event of a party's non-compliance with legislative obligations. 

12. To protect the privacy of Australians, the Department will be required to maintain the security of electronic communications to and from the approved identity verification facilities, and the information held in the NDLFRS. This information and communications must be encrypted and data breaches reported. 

13. There will be transparency about the operation of the approved identity verification facilities, including through extensive annual reporting requirements and annual assessments by the Information Commissioner on the operation and management of the facilities. 

14. The Bill reflects and seeks to implement aspects of the Commonwealth's commitments under the Intergovernmental Agreement on Identity Matching Services (Intergovernmental Agreement). The Intergovernmental Agreement provides that jurisdictions would share and match biographic and biometric information, with robust privacy safeguards, through the identity verification services. 

15. The Bill will be supported by the Identity Verification Services (Consequential Amendments) Bill which amends the Australian Passports Act 2005 to provide a clear legal basis for the Minister to disclose personal information for the purpose of participating in one of the following services to share or match information relating to the identity of a person: • the DVS or the FVS, or • any other service, specified or of a kind specified in the Minister's determination. 

16. The Consequential Amendments Bill will also allow for automated disclosures of personal information to a specified person via the DVS or the FVS. In combination, this comprehensively authorises the operation of the DVS and FVS in relation to Australian travel documents regulated by the Australian Passports Act.

Profiling and Matching

The Explanatory Memo for the Identity Verification Services Bill 2023 (Cth) states 

 Identity verification services are a series of automated national services offered by the Commonwealth to allow government agencies and industry to efficiently compare or verify personal information on identity documents against existing government records, such as passports, driver licences and birth certificates. 

1:1 matching services (the Document Verification Service and the Face Verification Service) are now used every day by Commonwealth, State and Territory government agencies and industry to securely verify the identity. In 2022, the DVS was used over 140 million times by approximately 2700 government and industry sector organisations, and there were approximately 2.6 million FVS transactions in the 2022-23 financial year. 

Examples of the current uses of the DVS and FVS include:

• verifying the identity of an individual when establishing a myGovID to access online services, including services provided by the Australian Taxation Office 

• financial service providers, such as banks, when seeking to verify the identity of their customers and to meet the ‘know your customer’ obligation under the Anti-Money Laundering and Counter Terrorism Financing Act 2006 (Cth) 

• Government agencies when providing services, disaster relief and welfare payments, and 

• Commonwealth, state and territory government agencies verifying identity in order to provide or change credentials. 

The Identity Verification Services Bill 2023 establishes new primary legislation that provides a legislative framework to support the operation of the identity verification services. The Bill will support the efficient and secure operation of the services without compromising the privacy of the Australian community. 

The IVS Bill will:

• authorise 1:1 matching of identity through the identity verification services, with consent of the relevant individual, by public and private sector entities. This will be enabled by:

 the Document Verification Service which provides 1:1 matching to verify biographic information (such as a name or date of birth), with consent, against government issued identification documents; 

the Face Verification Service which provides 1:1 matching to verifiy biometric information (in this case a photograph or facial image of an individual), with consent, against a Commonwealth, state or territory issued identification document (for example, passports and driver licences); and 

the National Driver Licence Facial Recognition Solution which enables the FVS to conduct 1:1 matching against State and Territory identification documents such as driver licences. 

• authorise 1:many matching services through the Face Identification Service only for the purpose of protecting the identity of persons with a legally assumed identity, such as undercover officers and protected witnesses. The protection of legally assumed identities will also be supported by the use of the FVS. All other uses of 1:many matching through the identity verification services will not be authorised, and will therefore be prohibited. 

• authorise the responsible Commonwealth department – in this case the Attorney General’s Department – to develop, operate and maintain the identity verification facilities (the DVS hub, the Face Matching Service Hub and the NDLFRS). These approved identity verification facilities will be used to provide the identity verification services. These facilities will relay electronic communications between persons and bodies for the purposes of requesting and providing identity verification services. 

Subject to robust privacy safeguards, the Department will be authorised to collect, use and disclose identification information through the approved identity verification facilities for the purpose of providing identity verification services and developing, operating and maintaining the NDLFRS. Offences will apply to certain entrusted persons for the unauthorised recording, disclosing or accessing protected information. 

The Bill ensures that the operation the identity verification services and requests for the use of those services are subject to privacy protections and safeguards. These include consent and notice requirements, privacy impact assessments, requirements to report security breaches and data breaches, complaints handling, annual compliance reporting and transparency about how information will be collected, used and disclosed. Furthermore, privacy law and/or the Australian Privacy Principles will apply to almost all entities that seek to make a request for identity verification services. These privacy protections and safeguards will be set out in participation agreements. 

Government authorities that supply identification information that is used for the purpose of identity verification services will also be subject to the privacy protections and safeguards captured in the participation agreement. Breaches of participation agreements can lead to suspension or termination of the agreement, meaning that the entity would no longer be able to request identity verification services. 

States or territories seeking to contribute to the NDLFRS will be subject to privacy obligations and safeguards, which are required by the Bill and will be set out in the NDLFRS hosting agreement. 

The Bill requires parties to the agreement to agree to be bound by the Privacy Act or a state or territory equivalent, or agree to be subject to the Australian Privacy Principles. The Bill requires state or territory authorities to inform individuals if their information is stored on the NDLFRS (and provide for a mechanism by which those persons can correct any errors), inform the Department and individuals whose information is stored on the NDLFRS of any data breaches, establish a complaints mechanism, and report annually to the Department on the party’s compliance with the agreement. The Bill enables states and territories to limit the use of identity information stored on the NDLFRS, and requires the Department to maintain the security of the NDLFRS. The Department may suspend or terminate access to the NDLFRS in the event of a party’s non-compliance with legislative obligations. 

To protect the privacy of Australians, the Department will be required to maintain the security of electronic communications to and from the approved identity verification facilities, and the information held in the NDLFRS. This information and communications must be encrypted and data breaches reported. 

There will be transparency about the operation of the approved identity verification facilities, including through extensive annual reporting requirements and annual assessments by the Information Commissioner on the operation and management of the facilities. 

The Bill reflects and seeks to implement aspects of the Commonwealth’s commitments under the Intergovernmental Agreement on Identity Matching Services (Intergovernmental Agreement). The Intergovernmental Agreement provides that jurisdictions would share and match biographic and biometric information, with robust privacy safeguards, through the identity verification services. 

The Bill will be supported by the Identity Verification Services (Consequential Amendments) Bill which amends the Australian Passports Act 2005 to provide a clear legal basis for the Minister to disclose personal information for the purpose of participating in one of the following services to share or match information relating to the identity of a person:

- the DVS or the FVS, or 

- any other service, specified or of a kind specified in the Minister’s determination. 

The Consequential Amendments Bill will also allow for automated disclosures of personal information to a specified person via the DVS or the FVS. In combination, this comprehensively authorises the operation of the DVS and FVS in relation to Australian travel documents regulated by the Australian Passports Act.

The Memo also states

... subclause 6(4) of the Bill ensures certain types of information are excluded and cannot be sought or requested through the identity verification services. This information is: 

•  information or an opinion about an individual’s racial or ethnic origin, political opinions, membership of a political association, religious beliefs or affiliations, philosophical beliefs, membership of a trade union, sexual orientation or practices, or criminal record (paragraph (a)) 

• health information about an individual (as defined in section 6FA of the Privacy Act) (paragraph (b)), and 

• genetic information about an individual (paragraph (c))

Colanders

A bad but unsurprising day for adherents of the Church of the Flying Spaghetti Monster in a case that alas has been much misreported.

In de Wilde v. the Netherlands (9476/19, Decision 9.11.2021) the ECHR has held that Article 9 of the Human Rights Convention is not applicable and in non-recognition of Pastafarianism as a religion or belief has endorsed rejection by the Netherlands of identity photos of Pastafarians wearing a colander. 

The Court's statement indicates 

Facts – The applicant is a so-called “Pastafarian”, a follower of the “Church of the Flying Spaghetti Monster”. When she tried to renew her identity card and her driving licence, she submitted identity photographs of herself on which, allegedly in line with the prescriptions of her belief, she was wearing a colander. These were rejected, in accordance with the delegated legislation in force, which required the identity photograph on official identity documents to show the bearer bareheaded unless a head covering was prescribed by the bearer’s religion. Her challenges were unsuccessful; the administrative and judicial authorities found that Pastafarianism did not qualify as a “religion”. The applicant complained, inter alia, that the domestic authorities, in particular the Administrative Jurisdiction Division of the Council of State, had misapplied the standards developed by the Court and that no account had been taken of her forum internum. 

 

Law – Article 9: Given the applicant’s complaints, the core question was whether Pastafarianism could be regarded as a “religion” or “belief” to be protected by Article 9. The Court replied in the negative. In particular, it found no reason to deviate from the findings of the Administrative Jurisdiction Division, whose decision appeared carefully measured and did not seem in any way arbitrary or illogical. That court had duly applied the standards set out in the Court’s case-law and noted a lack of the required conditions of seriousness and cohesion. While accepting that the applicant had been consistent in wearing her colander out of doors, it found that she had not shown that she belonged to a Pastafarian denomination that met the above preconditions. In this context, the Court noted that the original aim for which the Pastafarian movement had been founded had been to protest against the introduction into the school curriculum of the state of Kansas of the doctrine of “intelligent design” alongside the theory of evolution; this had inspired a movement critical of the influence and privileged position afforded to established religions in some contemporary societies. That movement had sought to express this criticism by parodying aspects of those religions and by claiming the same privileges for itself with a view to propagating its message. This understanding was supported not only by the form and content of Pastafarian teaching but also by the appearance in one of its “canonical” texts of the outright statement to that effect. 

 

In these circumstances, and in particular given the very aims for which the Pastafarian movement had been founded, the Court did not consider Pastafarianism to be a “religion” or “belief” within the meaning of Article 9. Consequently, the wearing of a colander by followers of Pastafarianism could not be considered a manifestation of a “religion” or “belief”, even if the person concerned submitted that he or she chose to do so out of a conviction that was genuine and sincerely held. 

 

It followed that Article 9 could not apply either to the “Church of the Flying Spaghetti Monster” or to those who claimed to profess its doctrines.

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

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.

Counterfeiting

The judgment in Hayward v R (Cth) [2021] NSWCCA 63 offers insights about the use of fake passports and counterfeit currency 

 The Offender arrived in Perth on a flight from Abu Dhabi on 25 September 2014. He entered the country using a German passport in his name with his date of birth. The following day he started committing money laundering type offences by exchanging counterfeit euro notes for Australian currency in Western Australia. He facilitated his offending in that regard by opening various bank accounts using a false Spanish passport thereby committing offences contrary to subs 137(2). He then used the accounts to exchange counterfeit euro notes into Australian currency. He committed 13 offences encompassed in counts 1 to 13 on the indictment in Western Australia from 26 September to 8 October 2014. 

The day after his arrival in Perth he entered the ANZ bank at Mt Lawley and using a false Spanish passport in the name Juan Sanchez opened an account. He then exchanged four counterfeit euro notes with a face value of €800 for $2,078.60. This gives rise to counts 1 and 2. 

On the same day he used the false passport to open an account at the Commonwealth Bank of Australia (CBA) in the same suburb giving rise to count 3. 

On the same day he used the same false passport to open an account at the National Australia Bank (NAB) in Morley, Western Australia and then exchanged six counterfeit euro notes with a face value of €1,200 for $1,594.49, giving rise to counts 4 and 5. 

Four days later on 30 September he entered the NAB branch at Mt Lawley and, utilising the account in the name of Juan Sanchez that he had opened on the 26th, exchanged 14 counterfeit euro notes with a face value of €2,800 for $3,745.87, giving rise to count 6. 

About a week later, the Offender went to the ANZ Bank located in Innaloo Plaza at Innaloo and opened another account this time using a false French passport in the name of Yean Leroux. He then utilised that account to exchange 26 counterfeit euro notes with a face value of €5,200 into $6,975.18, giving rise to count 7 and 8. 

The same day he opened another account, this time at the CBA in Innaloo using the same false French passport which gives rise to count 9. 

The following day at the CBA Bank located in St George’s Terrace, Perth, and using the CBA account he had opened in the name of Yean Leroux on 7 October at a different branch, he exchanged 10 counterfeit euro notes with a face value of €5,000 for $6,647.13, giving rise to count 10. 

On the same day he used the same false French passport to open an account at the NAB branch at Kendenup and then exchange 25 counterfeit euro notes with a face value of €5,000 for $6,642.47, giving rise to counts 11 and 12. 

The same day he used the same false French passport to open an account at the St George Bank located in St George’s Terrace Perth, giving rise to count 13. 

Subsequent enquiries and investigations revealed that the two individuals named in the false passports that the Offender used in Western Australia never entered Australia and the Australian Immigration entry stamp on each was fraudulent. Apparently a person cannot open a bank account in this country using a foreign passport unless it has an immigration stamp on it. 

Over the six transactions in the indictment within counts 1 to 13 the Offender laundered counterfeit euro notes with a face value of €20,000 obtaining $26,683.74. 

The Court notes that in addition to the offences on the indictment committed in Western Australia there are nineteen offences on the schedule of receiving a designated service contrary to subs140(1). The Court notes all matters contrary to that subsection on the Schedule relate to either opening a bank account or exchanging currency at a bank and are closely connected to the offences of uttering. In addition, whilst in Western Australia he was involved in 10 further offences of uttering counterfeit money that occurred in that state which involved him uttering counterfeit euro notes with a face value of €30,100, which at the time was equivalent to $46,596.84. 

... On 9 October 2014 the Offender flew from Perth to Melbourne. He flew back to Perth on 18 October 2014. Sometime between then and 21 October he travelled to Melbourne by unknown means. He then started committing offences in Victoria using a similar modus operandi to that employed in Western Australia. Over the two days of 21 October and 22 October 2014 he committed 11 offences in Victoria that give rise to counts 14 to 24 on the indictment. It is not necessary to go through the detail of those offences, they can be found in paras 24 to 34 of the facts, exhibit A1. The money laundering that he engaged in in Victoria was facilitated by his opening bank accounts using a false Spanish passport in the name of Miguel Augusto. As with the two passports he used in Western Australia the Australian Immigration Entry stamp on this passport was also fraudulent. 

Whilst in Victoria on five separate occasions the Offender exchanged a total of 50 counterfeit euro notes with a face value of €25,000 for $33,822.71. 

The Court should note that one offence in Victoria did not follow the pattern established by the other offences in the sense that, although he opened an account by presenting the false Spanish passport at the NAB branch in Chadstone, (count 18) he failed to replicate the signature on the passport and the bank officer refused to complete the transaction and subsequently closed the account. 

Whilst in Victoria he was involved in 23 offences contrary to subs 140(1)) and 12 offences of uttering that are on the schedule. The uttering offences involved counterfeit euros with a face value of €63,000 that had an equivalent value of $85,313. 

Using his true identity the Offender flew from Melbourne to Adelaide on 26 October 2014. Once in South Australia he committed a further 10 offences reflected by counts 25 to 34 inclusive. He committed those 10 offences over two days, 28 and 29 October 2014, using a false Portuguese passport in the name of Eduardo Durante. As with the other passports the Australian Immigration stamp on this false passport was also false. The modus operandi that he had used to launder money in South Australia was similar to that employed in both Victoria and Western Australia. It is unnecessary to set out the detail of the transactions in South Australia, they can be found at paras 39 to 48 of the facts Exhibit A1. 

Over the two days in South Australia on five separate occasions he exchanged 178 counterfeit euros with a face value of €21,800 for $29,187.67. 

The Court should note that in para 47 of the facts Exhibit A1 it refers to a Spanish passport in connection with count 3[?] [sic – count 33]. This is an error as the Crown assured the Court that all offences committed in South Australia that are on the indictment were facilitated by the same false Portuguese passport. Defence counsel made no submission to the contrary. 

During the same period in South Australia he committed a further 18 offences under subs 140(1)) and a further 12 offences of uttering counterfeit money that are on the schedule. Those uttering offences involved counterfeit euro notes with a face value of €52,700 that have an equivalent value of $70,000. ... 

It appears that by unknown means the Offender travelled from Adelaide to Melbourne sometime between 30 October and 1 November. On 1 November 2014 using his true identity the Offender flew from Melbourne to Perth and, on the following day using his German passport, he flew from Perth to Abu Dhabi. 

The Offender returned to Australia on 4 January 2015. He flew into Melbourne from Doha using his German passport. He flew to Sydney on 7 January and committed the remaining five offences on the indictment, counts 35 to 39, at Parramatta the following day. 

At 11.55am on 8 January 2015 the Offender went to the ANZ bank located in Level 2 of the Westfield Shopping Centre in Parramatta and, using a false Spanish passport and licence, he opened an account in the name of Jose Kamino, giving rise to counts 27 and 28 [sic – counts 37 and 38]. He then deposited 50 counterfeit euro notes with a face value of €10,000 euros into the account giving him a balance $13,655.60. He immediately withdrew $10,000 that gives rise to count 35. He apparently wanted to withdraw the balance from the account and staff directed him to another branch located on level 5 in the same complex. 

The Offender then made his way to the ANZ branch located on level 5 in order to withdraw the balance from the account that he had just opened downstairs. Paragraph 58 of the facts Exhibit A1 makes reference to count 39 in the context of his attendance at the branch on level 5 but does not identify the act that constitutes the offence. However, in light of the terms of count 39 and his guilty plea the Court infers that he produced the false Spanish passport in the name of Jose Camino in order to withdraw the $1,355.60 that remained in the account that he had opened at the branch on level 2. 

His desire to withdraw all the money he had deposited into the account raised the suspicion of staff who realised that his appearance matched the description of the person who had completed similar transactions involving counterfeit currency. Consequently, staff contacted the police. 

When the police arrived, they arrested the Offender who at the time was in possession of a backpack and a bum-bag. Inside the bum bag, the police located a false Spanish passport in name of Jose Kamino and a further 203 counterfeit euros with a face value of at least €6,600. His possession of these counterfeit notes gives rise to the offence count 36. The police also recovered the $10,000 he had withdrawn from the branch downstairs. The Court notes there are two offences of the schedule committed at Parramatta contrary to subs 140(1) that involve opening the bank account and exchanging currency. Following his arrest, the Offender participated in an ERISP interview but, as was his right, chose not to comment on any of the questions the police asked of him. 

The Court notes that, when he opened the account on that day, he provided an address of 25 Rush Street, Woollahra. Subsequent inquiries revealed he was not known at that address and had no links to it.”