Dual citizenship plan is bad policy even in fight against terror

By Professor Kim Rubenstein

We shouldn't go down the slippery slope of stripping citizenship for any reason.

Tony Abbott's announcement signalling laws enabling Immigration and Border Control Minister Peter Dutton to strip dual citizens of their Australian citizenship is a step in the wrong direction for a multicultural and democratically vibrant Australia. 

In 1901, Australians were solely British subjects. When Australia was encouraged by Canada to follow it in establishing a separate Australian status while maintaining the status of British subject, there was strong resistance in parliament. 

But the introduction of the new status of Australian citizen that came into effect on Australia Day in 1949 was an important step in recognising we could remain part of the Commonwealth by retaining our status as British subjects as well as become independent Australian citizens. It also displayed our comfort in maintaining a dual sense of connection to Britain and Australia. 

The addition of the term citizen was important, though, because being a citizen is different from being a subject. The latter indicates subjection to the power of the crown. Citizenship reflects a more even footing. Citizens elect their parliaments, and parliaments are bound by the rule of law. The citizen is not subject to the whim of the state but is, rather, the state's equal and can challenge the state's exercise of power in the courts. 

So when the state is able to take away that person's citizenship and their claim to equality within the state, it represents a dramatic change in the balance of power. With the Prime Minister's proposals, dual citizens become subject to the heavy hand of the state in determining whether they remain citizens. 

If the government can legislate to strip citizenship for terrorist activity, what is to stop dual citizens being vulnerable to losing their Australian citizenship for other reasons? Society abhors a plethora of wrongdoing - child abuse and domestic violence are just two of the categories that could appear on the slippery slope this move opens up. Why not determine dual citizens found guilty of either of these forms of wrongdoing should be stripped of their Australian citizenship and deported, or not allowed to return on leaving Australia? 

Dual citizenship has been part of the landscape since 1949 beyond the concept of being both a British subject and an Australian citizen. For those who took up Australian citizenship after 1949, if their country of first citizenship allowed them to keep that former citizenship, they were dual citizens. Since 2002, in addition to foreign-born citizens being able to have dual citizenship, Australia has recognised its citizens can take up another citizenship without losing their own. 

Politicians recognised that dual citizenship had been accepted in a world of international mobility and it was possible to maintain strong connections with Australia even when people acquired another country's citizenship. Australiahas thus moved towards a more unifying and inclusive notion of citizenship, affirming our nation's multicultural status. 

While the problem of Australian citizens being involved in violent conflicts on foreign soil must be addressed, this should not involve depriving dual citizens of their citizenship. Once a person is an Australian citizen, the consequences of committing a criminal offence should be only a matter for the criminal law. 

Australia has a suite of laws that criminalise acts committed on foreign soil, including treachery. Criminalising these acts and prosecuting our citizens is the best way to act as a good international citizen. How responsible is Australia in the context of the world fight against terrorism if we punish our dual citizens by excluding them from our territory? 

To politicise citizenship, and to use it as a tool of exclusion and as the basis of a threat, undermines its purpose and ignores the contribution dual citizens make to this country. This is a message we should be communicating to Philip Ruddock and Concetta Fierravanti-Wells as they take up their roles engaging with the community about citizenship and in combating radicalisation. 

Threatening to strip dual citizens of their citizenship is counterproductive, undermines international good citizenship and reduces Australia's ability to deal with its rogue elements, irresponsibly making them someone else's problem. The move should be strongly resisted. 

Kim Rubenstein is director of the Australian National University's Centre for International & Public Law at the ANU College of Law. This article was originally published in The Australian.

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Updated:  10 August 2015/Responsible Officer:  College General Manager, ANU College of Law/Page Contact:  Law Marketing Team