'The Rights and Responsibilities of Australian Citizenship' by Sangeetha Pillai in (2014) 37(3)
Melbourne University Law Review indicates that
The Preamble to the Australian Citizenship Act 2007 (Cth) makes three broad claims about Australian statutory citizenship: that it signifies ‘full and formal membership of the Australian community’; that it is characterised by the possession of ‘reciprocal rights and obligations’; and that it is a ‘bond’ that ‘unites all Australians’. This article examines the extent to which these claims accurately describe the legal implications of citizenship in Australia. In doing so, it looks in detail at the degree to which holding Australian statutory citizenship impacts upon the rights a person possesses in four broad categories that are intrinsically connected with citizenship: status protection rights, rights to entry and abode, rights to protection, and political rights.
Pillai comments that
The Parliament recognises that Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a bond, involving reciprocal rights and obligations, uniting all Australians while respecting their diversity.
The Parliament recognises that persons conferred Australian citizenship enjoy these rights and undertake to accept these obligations:
(a) by pledging loyalty to Australia and its people; and
(b) by sharing their democratic beliefs; and
(c) by respecting their rights and liberties; and
(d) by upholding and obeying the laws of Australia.
— Preamble, Australian Citizenship Act 2007 (Cth)
Unpacking the legal implications of citizenship in Australia requires an inquiry on at least two levels. First, the statutory citizenship regime set up by the Australian Citizenship Act 2007 (Cth) (‘ACA 2007 ’) and associated legislation must be understood. Secondly, this legislative regime must be situated within the parameters of the broader framework established by the Australian Constitution.
The constitutional framework for Australian citizenship has received sig- nificant attention in a number of recent scholarly papers. Accordingly, this article directs its focus towards the first limb of inquiry: the question of what legal consequences flow from the possession of statutory citizenship in Australia. This is an issue which has escaped substantial consideration for over 10 years, despite the fact that during this time the ACA 2007 was introduced to replace the previous citizenship legislation, the Australian Citizenship Act 1948 (Cth) (‘ACA 1948’).
In particular, this article seeks to test claims about the legal significance of possessing Australian citizenship against the legal reality. The above Preamble serves as a useful source of such claims. The Preamble was first introduced, albeit with slightly different wording, into the Australian Citizenship Act 1948 by amendment in 1993. In the second reading speech for the amending legislation, Senator John Faulkner stated that the Preamble would ‘defin[e] the meaning which the Parliament and the people of Australia accord to citizenship’.
The Preamble suggests that three broad implications flow from the posses- sion of statutory citizenship in Australia. First, it claims that, unlike non- citizens, citizens under the Act are ‘full and formal members’ of the Australian
community. Secondly, it suggests that citizenship is characterised by the possession of ‘reciprocal rights and obligations’ that are not held by non-citizens. Finally, the Preamble describes statutory citizenship as a ‘bond’ that ‘unite[s] all Australians while respecting their diversity’, suggesting that citizenship is underpinned by principles of equality.
In Roach v Electoral Commissioner (‘Roach’), Gleeson CJ drew directly on the ‘reference to the reciprocity of rights and obligations’ in the Preamble. His Honour stated that this notion of reciprocity is ‘important in the context of membership of the community’, and that breaching the obligations of mem- bership (for example, through serious criminal activity) may warrant temporary suspension of legal rights associated with citizenship. Gleeson CJ’s statement suggests that the citizenship rights and obligations referred to in the Preamble are not purely moral or social in nature; to at least some extent, they give rise to legal implications. This article analyses the extent of these implications via an examination of the most significant differences between the rights of citizens and non-citizens under Commonwealth legislation. This question has previously been considered by Kim Rubenstein in her 2002 text, Australian Citizenship Law in Context, which comprehensively surveys the extent to which Commonwealth legislation discriminates on the basis of statutory citizenship.
Rubenstein’s study reached two broad conclusions: first, that statutes far more commonly discriminate on the basis of residence in Australia than on the basis of citizenship; and secondly, that where citizenship-based discrimination does exist in Commonwealth legislation, this discrimination lacks any ‘consistent basis’. Though over a decade has elapsed, and the citizenship legislation in force in 2002 has been replaced, these conclusions remain broadly true today. Accordingly, this article adopts a more targeted analysis. Rather than cataloguing every legislative distinction that separates citizens and non-citizens, it looks in-depth at the extent to which holding statutory citizenship impacts upon the possession of rights in four broad categories: status protection rights, rights to entry and abode, rights to protection, and political rights.
These categories are intrinsically connected with citizenship. Each enshrines rights which were fundamental to very early configurations of the state–citizen relationship. Moreover, they have not lost relevance over time; internationally, the codification of express citizenship rights in each of the four areas is very common, both constitutionally and in statute. To a certain extent, Australian legislation reflects this trend. In each category, possession of Australian citizenship materially affects the extent to which rights protection exists. This is in contrast to most rights in Australia, which are not predicated upon possession of citizenship. However, the extent to which citizens’ rights protection in these areas is achieved through statutory codification varies somewhat. Moreover, legal protection is not always equal for all citizens, calling into question the notion of equality between citizens alluded to in the Preamble to the ACA 2007.
This article is divided into five parts. Part II contextualises the ACA 2007, providing an overview of its substance, and explaining its constitutional basis and evolution from historical citizenship legislation in Australia. Part III examines the question of what rights flow from the possession of statutory Australian citizenship in each of the categories outlined above. In doing so, it compares the rights that arise in Australia with those in overseas jurisdictions. Particular emphasis is placed on the citizenship rights that exist in the United Kingdom, Canada and New Zealand. These countries emerge as natural comparators for Australia for two reasons. First, all four countries share a historical connection, in the sense that their concepts of citizenship have roots in the common law concept of ‘British subject’ status. Secondly, like Australia but unlike a large number of countries worldwide, legal citizenship in the UK, Canada and New Zealand is primarily developed through statute, rather than constitutionally. Part IV examines the question of which obligations, if any, can be said to arise reciprocally to the rights considered in Part III. Part V concludes by considering whether the Preamble’s three claims about the nature of Australian citizenship are borne out by Australian law, based on the analysis in Parts III and IV.
