Jordens, Ann-Mari --- "Australian citizenship: 50 years of change" [1999] ALRCRefJl 5; (1999) 74 Australian Law Reform Commission Reform Journal 24

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Reform Issue 74 Autumn 1999

This article appeared on pages 24 – 28 of the original journal.

Australian citizenship: 50 years of change

Over the 50 years since the implementation of the Nationality and Citizenship Act 1948 (Cth), thinking about the meaning of Australian citizenship has progressed from an understanding of citizenship as membership of a society that was British in culture and ethnicity, to concern to define the rights and responsibilities associated with full membership of a culturally diverse Australian society.

Ann-Mari Jordens* writes that these changes in thinking have occurred in response both to pressures within Australia and internationally.

Britain granted the status of British subject to the peoples of countries that had formed part of its empire. Following the 1939-45 war, the need was felt in some British Commonwealth countries for their own citizenship. Canada, with its ethnically and culturally diverse British and French populations, became in 1947 the first to create a separate citizenship. Although in Australia there was no popular pressure to create a separate citizenship status, the federal Cabinet decided in late 1945 that Australia would follow the Canadian model. The Australian Nationality and Citizenship Act 1948 (Cth) came into force on January 26, 1949. From that date Australians became both Australian citizens and British subjects and remained British subjects until that status was abolished in 1984.

Concepts of national identity are revealed most clearly in citizenship legislation because it defines who belongs and who is excluded from the nation. The creation of a separate Australian citizenship did not change the prevailing conception of the ‘imagined community’¹ of Australians, which was still seen essentially as Anglo-Celtic, male and white. On the contrary, this normative conception of the Australian citizen was reflected and reinforced by the Act. Until 1987, the Act defined an ‘alien’ as ‘a person who does not have the status of British subject and is not an Irish citizen or a protected person’. The image of an Australian enshrined in the Act, therefore, was that of an Anglo-Celt. It also affirmed the inferior legal status of women in the family. Until 1969, children of married women could only attain their citizenship status through their fathers and only in 1984 was the definition of ‘responsible parent’ amended to provide equal rights to both parents. Before then a father could take a child out of Australia without its mother’s permission

Citizenship policy was administered in a way that reinforced the understanding of Australia as a ‘white’ nation. Non-Europeans, no matter how long they had lived in Australia, were ineligible to apply for citizenship (although their Australian-born children gained it automatically). After 1956, non-Europeans who had lived in Australia for 15 years were allowed to apply for citizenship, although European aliens could apply for citizenship after living in Australia for five years and British nationals after one.

Responsibility for administering Australia’s citizenship legislation was given to the Department of Immigration. Even it had no idea what it meant to be an Australian citizen as distinct from a British subject. In 1953, the Secretary of that department, Tasman Heyes, asked his officers to clarify the difference between Australian citizenship and British subject status. The task was quite beyond them. At Heyes’ request the desirability of having a Charter of Australian Citizenship was put before the community leaders who comprised the 1955 Citizenship Convention. They were similarly baffled and passed the ball back to the Minister for Immigration, Harold Holt, who dropped it into the too-hard basket where it stayed for many decades.

Agents of change

This lack of thinking about the meaning of Australian citizenship did not, however, mean that there were no forces in the community impelling change.

Aliens. Because responsibility for administering Australia’s citizenship legislation was given to the same Commonwealth department responsible for overseeing Australia’s postwar program of mass migration, thinking within the bureaucracy was firmly focused on strategies to encourage migrants to become citizens, not on what it meant to be an Australian citizen. For the first 30 years after the Second World War, therefore, non-British migrants were the principal agents of change in citizenship legislation.

The acceptance of Australian citizenship by aliens was seen as an indicator of their successful assimilation - of their social, political and cultural absorption into the mainstream community. To encourage this process the government gradually eased the requirements demanded of aliens seeking citizenship. In 1954 and 1962 it removed most of the obstacles caused by the complexities and insensitivities of the application procedures.²

British migrants were not agents of change. They were not the focus of citizenship promotion campaigns conducted by the Department of Immigration. Although citizenship was made particularly easy for them to obtain, they were the group least likely to apply for it. They had little incentive to acquire Australian citizenship because they could enter Australia without a visa, access all Australian social welfare benefits on arrival, and vote in Australian elections without being citizens.

Labor’s changed vision 1972-75. Throughout their 22 years in power the Liberal-Country Party coalition governments consistently affirmed Australia’s identity as a ‘homogeneous’ nation. This concept of Australian national identity was becoming increasingly untenable after 30 years of migration from a wide range of European nations and, after 1966, from a number of non-European countries.

The Labor government, elected in 1972, introduced an entirely new concept of Australian national identity - that of a multicultural society. It clearly identified systemic discrimination as the principal cause of the failure of many migrants to become Australian citizens and looked to a number of international instruments to set benchmarks for the rights of Australians. In 1973 it decided to ratify the United Nations covenants on Civil and Political Rights and on Economic, Social and Cultural Rights, and its Convention on the Political Rights of Women. It also agreed to ratify the convention adopted by the International Labour Conference in 1958 abolishing discrimination in employment. The principal consequence of these changes was the reconceptualisation of Australian citizenship from membership of a society essentially British in culture and ethnicity, to a rights-based notion of citizenship. It emphasised this change by renaming the Nationality and Citizenship Act as the Australian Citizenship Act in 1973.

The Labor government also set about dismantling the network of discriminatory legislation, which had sustained the conception of Australia as a nation of essentially British culture and ethnicity. As well as declaring its intention to abandon all discrimination on the grounds of race and ethnicity in the selection of migrants, in May 1973 it announced that the Aliens Act 1947 would be amended to eliminate the requirement that aliens notify the authorities annually of changes in their address, occupation and marital status. The federal government also amended the provisions of the Crimes Act 1914 (Cth) allowing naturalised Australian citizens to be deported. In July 1973 the Minister for Immigration announced the end of pro-British discrimination. In future, Britons would require visas to enter Australia and like all other applicants for citizenship would be required to have lived in Australia three years before applying, attend naturalisation ceremonies and take the oath of allegiance. The Commonwealth Electoral Act 1918 was to be amended to prevent British non-citizens from enrolling as voters.

Indigenous Australians

Citizenship status. The settlement of non-Europeans was prevented until 1966 through the administration a racially discriminatory migration policy. Indigenous Australians, who also were neither ethnically nor culturally British, were prevented from participating in the community of the nation both by excluding them from Commonwealth legislation that endowed non-Indigenous Australian citizens with social, political and civil rights, and by State legislation that deprived them of such rights.

From 1844, the naturalisation laws of the Australian colonies were directed towards aliens and, with the exception of Western Australia, made no mention of Aborigines. Prior to 1921, Indigenous Australians denied citizenship under colony or State law had to apply to become naturalised British subjects in Australia in the same way as aliens. Under the Nationality Act 1920 (Cth), all Aborigines and Torres Strait Islanders born after January 1, 1921 gained the status of British subjects. In 1949, therefore, they automatically became Australian citizens under the Nationality and Citizenship Act 1948 (Cth).

Social rights. Australian citizenship was a pure formality for Indigenous Australians. They had none of the rights and responsibilities of Australian citizenship as laid down in Commonwealth legislation. Section 51(xxvi) of the Australian Constitution empowered the Commonwealth parliament to make laws in respect to “the people of any race, other than the aboriginal race in any State for whom it is deemed necessary to make special laws”. Until 1955, the Commonwealth administration took the view that it had no power to make laws giving social rights to Aborigines living in the States. That year the federal Attorney-General, Sir Garfield Barwick, interpreted this section as allowing general laws, such as those giving social service benefits, not to be regarded as ‘special laws’.

Despite this ruling, Indigenous Australians were still marginalised and excluded from the social rights granted to Australian citizens. The Social Service Consolidation Act 1947 (Cth) granted age or invalid pensions and maternity allowances only to those Aborigines who had applied to be exempted from State legislation governing Aborigines (that is, had renounced their Aboriginality and isolated themselves from their communities). In States that did not provide for exemption, Aborigines had to satisfy the Director-General that “by reason of the character and the standard of intelligence and social development of the native, it is desirable that a pension should be granted to him”. This assessment of worth (and of assimilation) also determined the payment of unemployment or sickness benefits. Even when granted, pensions and allowances were not paid personally to Indigenous applicants but to “an authority of a State or to some other authority or person the Director-General considers suitable for the purpose”. Child endowment was not paid to nomadic Aborigines or those dependant on the Commonwealth or State for support. Despite the Attorney-General’s 1955 ruling, the Social Services Act 1959 perpetuated these inequities. The situation was not remedied until s. 51 (xxvi) of the Constitution was amended following the 1967 referendum, when Australian citizens voted overwhelmingly to allow the Commonwealth to legislate for the benefit of Aborigines as well as other Australians.

Civil rights. Legislation restricting the citizenship rights of Aborigines varied from State to State and Commonwealth legislation did nothing to protect their civil rights; not even Indigenous parents’ rights to be legal guardians of their children. The Commonwealth Marriage Act 1961 deferred to States which required adult Aborigines to obtain the consent of authorities to marry. Aborigines had their freedom of movement restricted by s. 64 of the Migration Act 1958. Like children, they could not leave or be taken out of Australia without the permission of the Minister for Immigration. This was repealed by the Labor government in 1973.

Political rights. Indigenous and non-Indigenous Australians did not have the same political rights. At Federation, no Aborigine was entitled to vote for the Commonwealth parliament unless they were entitled to vote in a State. Their entitlements varied from State to State. This provision was preserved by the Commonwealth Electoral Act in 1949 and 1961, which added that Aborigines who had served in the Defence Force were entitled to enrol. In 1962, this Act was amended to allow Aborigines to enrol for federal elections irrespective of their voting rights in the States. Enrolment was, however, not compulsory. It was not until the Commonwealth Electoral Legislation Amendment Act 1983 that Aborigines were obliged to enrol and vote like all other Australian citizens.

Citizenship responsibilities. Aborigines did not have the same responsibilities as other Australian citizens. The Defence Act (No 2) 1951 only applied to forces comprised mainly of Aborigines. The National Service Act 1964 exempted Aborigines from registration for the conscription scheme introduced that year for all Australian citizens.

Political and legal change. The first Indigenous organisation advocating citizenship rights was formed in 1919. By the 1930s there were a number of similar organisations, but their moderate tactics failed to engage the States in dialogue or debate. They did, however, attract support from non-mainstream white individuals and organisations such as the Communist Party and the nationalist writers of the Jindyworobak movement. The Commonwealth argued that the Constitution made Indigenous rights a matter for the States. The first national citizenship movement began in 1958 with the formation of the Federal Council for Aboriginal Advancement and its leaders became more militant. Indigenous leaders now argued that political rights were meaningless unless other civil, economic and social rights were also in place.

By redefining Australia as a multicultural nation and ratifying a number of international instruments which set new benchmarks for citizens rights in Australia, the Whitlam government (1972-75) created a political environment favourable to the Indigenous cause. It was not until that government passed the Racial Discrimination Act 1975 (Cth) that Aborigines gained rights to equality before the law. This Act, which incorporated Article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination, conferred on Indigenous Australians the right to manage their own property and was binding at both Commonwealth and State levels.

Since the 1970s, Aborigines have struggled for land and cultural rights. The latter were guaranteed by legislation passed in 1981 protecting Aboriginal art and folklore. Both campaigns have benefited all Australians by forcing a recognition of the validity of cultural difference, drawing attention to group rather than individual rights, and requiring officials to refer to international conventions, which show that Anglo-Celtic norms do not always measure up to international standards of citizenship. Indigenous Australians are now the principal agents of change in Australian thinking about citizenship.³

Citizenship and the Constitution

Citizenship of Australia is not mentioned in the Constitution, it is a mere legal inference. Citizenship is, therefore, not a constitutional concept. As the history of Australia since 1901 has clearly demonstrated, the Constitution has not ensured adequate political representation to the two groups who had no voice in the discussions which led to the framing of the Constitution, and who were largely invisible to the men who formulated it - Indigenous Australians and women. Although they have had the vote since 1902, women have never enjoyed equality of representation in the Australian parliament, and there has been only one Aboriginal member (a second will take his seat in mid 1999). Since TH Marshall first published his work on citizenship in 1948,⁴ it has been generally accepted that social and civil rights are just as important as political rights in ensuring full and equal participation in the community of the nation. The history of Indigenous Australians since 1962 illustrates this clearly.

The Australian Citizenship Act 1948 provides little more than a bare definition of citizenship and tells us nothing about its legal consequences. Although its preamble refers to the rights, obligations and liberties of Australia and its people, it nowhere explains what these are. As neither the Constitution nor the Australian Citizenship Act define the legal consequences of the legal status of citizenship, it is necessary to search through various pieces of legislation and separate pronouncements by the High Court of Australia to determine what they are. Kim Rubenstein, who has undertaken this task, comments that “the consequences are not always clear nor logically consistent”.⁵

In his 1993 Deakin Lecture at the University of Melbourne, former Governor General Sir Ninian Stephen described the Australian Citizenship Act as “a masterpiece of legislative incoherence”. He recommended that both it and the Constitution be rewritten so that all Australians might understand their rights and responsibilities and the nature of the Australian political system. Rubenstein argues that the legal consequences of the legal status of citizenship could be clarified by a statement in the Australian Citizenship Act. However, as the legal status of citizenship is not essential for full membership of the community, extreme care should be taken not to “disinvest non-citizens of rights and status they are entitled to, not as Australian citizens, but as citizens in the common cause of humanity”.⁶

It seems anomalous that the Constitution, the founding document of Australian nationhood, does not include the concept of citizenship. The document clearly needs to be reviewed in the light of the changes which have occurred in Australian society, culture and values since 1901. At the very least, the Constitution should confirm the Commonwealth’s right to legislate and define citizenship, as this has never been conclusively determined.⁷ As a preamble to the Constitution does not have legal force, a charter of the rights of citizenship embedded in the Constitution along the Canadian model would provide the strongest legal basis for the rights and duties of Australian citizens, and would be the most democratic and educative option. Given the current state of confusion in Australia on the meaning of citizenship, and the need for bipartisan political support for any revision to the Constitution, this seems, at the moment, only a remote possibility.

* Ann-Mari Jordens is a Canberra-based historian.

Her most recent books, Alien to Citizen. Settling Migrants in Australia 1945-75 Allen and Unwin in association with Australian Archives Sydney 1997 and Redefining Australians. Immigration, Citizenship and National Identity Hale and Iremonger Sydney 1995, were the product of a Research Fellowship held in 1992-93 in the Administration, Compliance and Governability Program within the Urban Research Program, Research School of Social Sciences, Australian National University.

Endnotes

1. The term ‘imagined community’ is derived from B Anderson Imagined Communities: Reflections on the Origin and Spread of Nationalism Verso London 1983 (reprint 1991).

2. For changes in citizenship legislation see A Jordens Alien to Citizen. Settling Migrants in Australia 1945-75 Allen and Unwin in association with Australian Archives Sydney 1997, at 171-87.

3. For the most detailed account of restrictions on Indigenous rights see Bringing them Home Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families, 1997; See also A Davidson, From Subject to Citizen. Australian Citizenship in the Twentieth Century Cambridge University Press 1997, at 188-215; A Jordens Redefining Australians. Immigration, Citizenship and National Identity Hale and Iremonger Sydney 1995, at 8-13; A Jordens ‘An administrative nightmare: Aboriginal conscription 1965-72’ (1989) 13 Aboriginal History 124.

4. TH Marshall Citizenship and Social Class and other essays Cambridge University Press 1950.

5. Kim Rubenstein ‘Citizenship in Australia: Unscrambling its meaning’ (1995) 20 Melbourne University Law Review 517.

6. ibid, at 527.

7. ibid, at 505.