Most Australians take being a citizen for granted, but what does it mean in a legal sense? An expert explains.

Professor Kim Rubenstein, Director of the Centre for International and Public Law (CIPL) in the ANU College of Law, works at the intersection between public law and international law. While her research interests are broad, she has a particular fascination with the current political hot potato of citizenship – an issue that she has spoken on in the High Court three times. She spoke to ANU Reporter about why it’s a subject that’s far from straightforward.

ANU Reporter: Why is citizenship complicated?

Kim Rubenstein: I think because it’s a term that’s used by many different people in different ways. We all sort of acknowledge it instantly as something we recognise but, depending on our perspective, think of differently. I think to the average person on the street ‘citizen’ is ‘membership’ and it’s seen as the highest form of membership. People very freely talk about their ‘fellow citizens’ in that general way, whereas for a lawyer citizenship is a formal term that is distinguished from other types of membership. So when most people refer to their fellow citizens, they’re not actually talking about fellow legal citizens, they’re talking about their fellow community members. In some ways it’s not confusing, in the sense that there is a sort of common understanding of membership, but it is confusing if you want to be specific. If you want to develop research, you have to unpack those different meanings to really have any sort of valuable discussion.

R: How closely related or different are these different concepts of citizenship?

KR: In some ways it doesn’t necessarily lead to a significant difference. There are lots of aspects of the formal distinction that don’t flow onto legal consequences. The contrast between permanent residence and citizenship is not that great. I have a whole chapter in my book on Australian citizenship law (Australian Citizenship Law in Context) which goes through all the different pieces of legislation that distinguish citizens, permanent residents and temporary residents. There are only a handful [of laws] that are really significant in people’s lives and those are voting rights, connected to democratic notions of citizenship, and residence rights. Permanent residents are only entitled to stay as long as they reside here, as soon as they leave the country they have to get a re-entry permit. At the moment citizens have a right to return. But things like social security are not always dependant on citizenship, and certainly for the payment of taxes you don’t have to be a citizen. Anyone who works in Australia has to pay taxes in Australia. In some ways a lot of people think of tax as a common denominator of membership. If you are here and paying taxes then you are a member of the community. Another real disjuncture is the whole area of army service. There is still on the legislative books the Act providing for conscription, and while it hasn’t been used, ultimately there is a legal framework for calling people up again if the Government decided to. Under that Act you only have to reside here for six months to be conscripted.

R: So you don’t have to be a citizen?

KR: No. There was actually a case in the Second World War, a man called Mr Polites (Polites v. The Commonwealth and Another [1945] HCA), who was a Greek national who’d been in Australia for more than six months when he was conscripted. He sought to challenge that conscription as unconstitutional. The High Court held that it was actually within the Commonwealth’s power to do it. That may not be a good thing in terms of international comity, in that Australians overseas could be conscripted to fight for other countries, but as a matter of law there was nothing to stop the government conscripting people who were living here who weren’t citizens. They are good examples of the different ways of understanding membership of the community and they are not always linked to formal citizenship. I write in one of my earlier papers that you can basically conscript someone without them having voted for the war or having any kind of democratic input. You can then send them overseas, and once they are overseas they don’t have a right of re-entry to the country that they are fighting for, because as a non-citizen they don’t have a right of re-entry. That kind of disjuncture is really quite marked.

R: Which for a non-lawyer brings up all sorts of issues around justice and equity. There is a strong theme through your research on the concept of equity in how law applies and doesn’t apply. How do you process that as a lawyer?

KR: I think my aim as a lawyer is to make the law more just. My aim in doing this work is to show these anomalies in the hope that it will influence policy makers. And perhaps a good example in the ‘Lottery of Citizenship’ paper was the case of the Papua New Guinean woman. [Susan Walsh, who inherited Australian citizenship by virtue of being born in an Australian Territory and also had an Australian parent, but who lost her citizenship when the law relating to PNG changed.]  I mean, how unjust is it that you’re born in the territory of the country you get citizenship from, your parent is a citizen, but you end up not being recognised as a citizen by law because the territory you were born in is no longer a part of the country. The wording of the entitlement to ‘citizenship by descent’ is that you have to have been born outside the country. So you’re disadvantaged by virtue of birth and territory as well as time and place. That case, for which I also was the barrister in the High Court application, ended up on the current Parliament’s legislative agenda within a much broader Bill, which is about restructuring the Australian Citizenship Act. In my opinion that case highlighted the anomaly to policy makers of that scenario and in this current Bill there is a proposed provision seeking to enable people like Susan Walsh to apply for citizenship. So there can be policy flow-ons from the research when you highlight these anomalies, but there are no guarantees that this will happen. Often the opposite can happen.

R: This area of research is interesting politically as well as legally. There was the recent case of a man being deported to a country of which he had no citizenship and no sense of belonging because of his criminal record. If the Solicitor-General argued that the Commonwealth can prevent a citizen from re-entering, where does it leave a citizen who isn’t allowed to re-enter the country? Are they left stateless?

KR: This is a nice segue into the international law aspects because there are international law principles that this practice could contravene. There is interesting research about the role of nationality in international law. And in my role as Director of CIPL my research straddles both nicely in terms of public and international law. There are basic principles in international law about nationality. In the International Covenant on Civil and Political Rights there is Article 12(4) which provides: “No one shall be arbitrarily deprived of the right to enter his own country”. So there is this sort of tension as to whether “his own country” is necessarily restricted to nationality, but it must include nationality. There would be interesting legal issues that would arise if the Commonwealth decided to take such a dramatic step as depriving a person of the right to enter their own country of citizenship. I supposed the context that is most likely to arise at the moment is in relation to terrorism.

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ANU Reporter 
Summer 2007