Speakers and abstracts
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Asmi Wood, “Arrogating the power to decide over Aboriginal people’s place on this continent: the executive’s position in Love v Thoms”
Elisa Arcioni, “Territoriality at the heart of membership: insights into community"
Citizenship of a nation state is inevitably about membership of a territorial entity. This paper first outlines how territory is key to a series of different indicators of different forms of membership within the Australian constitutional system. From the impact of changing outer boundaries of the state, to questions of membership of sub-national States, to how one can fall outside an exclusionary category of immigrant, through to how Aboriginal connection to Country is a basis for constitutional belonging. The significance of territory brings with it discussions of sovereignty, federalism, absorption into a group and the intersection of First Nations and settler-state legal ontologies. The paper then considers the insights a focus on territoriality gives us into membership. Territoriality is important because of the relationships to territory which have legal relevance. By delving into the kinds of relationships to territory that become legally relevant, we see fraught questions of: what is community and how is community understood at law, to what extent individuals can determine their own membership as opposed to membership being ascribed to them and how the law struggles to address the existential realities and complexities of memberships across legal boundaries.
Adil Hasan Khan, “An imperial genealogy of the practices of minority management and protection: the making of a citizenship crisis in South Asia”
There is a widely perceived and ongoing “citizenship crisis” in contemporary India, as the Indian Supreme Court’s authorisation of a massive citizenship status verification process (NRC) in the state of Assam threatens to render stateless several million people, especially those belonging to religious and ethnic minority groups. At the same time, the Indian Citizenship Amendment Act (2019) provides expedited access to citizenship to members of select religious minority groups from neighbouring states. Critical commentators have identified a double-standard in the invocation of the legal category of minority in these processes: While in the first instance, minority is a marker of a “lesser” citizenship status to which the state owes only limited, or no, obligations, in the second, it is a marker of a subject of rights protection notwithstanding a lack of formal status vis-à-vis the state.
In this paper, I situate these treatments of minorities in the mid-19th century British imperial regimes of indirect rule, on one hand, and capitulations, on the other, to suggest that the approaches are less contradictory than they might seem. I aim to show how these subterranean imperial practices continue to form this crisis of citizenship in the present.
Christoph Sperfeldt, “Citizenship and statelessness: reflections from Cambodia”
Citizenship in its contemporary form is frequently associated with the modern nation state, whereby it regulates membership in a political community. It is in the nature of membership-based organisations that they require a process of distinguishing between members and non-members, in the case of the nation state between nationals and non-nationals. Through colonisation this nation state model was imposed on many parts of the world, often supplanting other local forms of identity and belonging. With ever more rights and privileges tied to citizenship, the costs of exclusion from citizenship have increased. New forms of registration and (digital) identification –often combined with mandatory proof of legal identity for accessing rights, services and opportunities –have hardened the boundaries of citizenship. Those who do not belong to any state, i.e. who are stateless, bear the brunt of social and political exclusion. Building on almost 15 years of fieldwork and engagement with stateless minority populations in Cambodia, I reflect in my presentation on colonial legacies, the amalgamation of citizenship with ethnic and racial identities, as well as the tools and strategies through which states manufacture and re-produce exclusion and statelessness from among long-term resident and minority populations on their territories.
South Asian Research and Advocacy Hub (SARAH): Identity in the Australian Colonial-State and the “ongoing struggle for [Australian] Indian’s souls”
This paper examines the dialogue surrounding identity and belonging for South Asian Australians who from birth to death, must constantly negotiate their place in Australian society. This dialogue is often between two competing Australian frameworks of belonging; Multiculturalism and Anglo-Australian Assimilationism. Both seek to capture and restrain our capacity to reimagine what it means to be ‘Australian.’ In doing so, they both affirm that Australian identity, despite the insistence to the contrary, is heavily racialised, based on continuing the Australian colonial project and rooted entirely in the sensibilities of white settler colonists. Multiculturalism insists that migrants have always been a part of our national mythology. In contrast, Anglo-Australianalism construes Australia as an empty paradise promised to the white working class, tying belonging to the political establishment of whiteness. Both present Migrants with a poisoned false dichotomy; the ‘choice’ to assimilate for the promise of acceptance, or to risk socio-cultural alienation and denigration by attempting to define oneself (Sunil and Ram, 2004). While this ‘choice’ is misleading as belonging is denied regardless, it also greatly limits migrants’ agency to produce versions of their own history and identity. Under this system, non-conformity is purposefully misconstructed as ingratitude and Multiculturalism is too often presented as a solution to racism. Regardless, South Asian communities are living entities with visions separate from white ideals and aspirations. Therefore, this paper will discuss the ways in which South Asian Communities engage with the dominant frameworks of identity, and how some subvert, challenge and ultimately break free from this false choice.
Gianmaria Lenti, “Burden or benefit? How Australian Federal Policy stigmatises aspiring residents living with HIV”
Based on ethnographic data, policy review, and official documents from the Department of Home Affairs, this presentation addresses normalised forms of State discrimination and structural violence towards non-citizens living with HIV, who attempt to achieve permanent residency in Australia. HIV positive subjects frequently live medicalised and stigmatised existences in which they depend on hard-to-get antiretroviral drugs produced by big pharmaceutical companies, while often keeping their health status secret for fear of social exclusion. The Australian border regime further impacts upon these already precarious lives, by subjecting HIV-positive foreigners to denigrating forms of marginalisation that re-victimise them, while commodifying their being-in-the-world at the intersections between race, class, gender and health. The humiliation imposed by mandatory health examinations is just the beginning of the journey, as a positive outcome in applicants' HIV tests translates into the beginning of a frustrating process in which they must prove their worthiness to access the national space, providing evidence that their permanent settling into the country will generate more profits than the costs sustained by the State to deliver lifelong free medications. Since meeting all visa criteria is not enough to waive Australian health requirements, applicants need to juggle the Migration Regulation 1994 to demonstrate their deservingness in economic and humanitarian terms. While being demonised as risks for public health and State coffers’ plunderers, applicants living with HIV must anesthetise their own feelings to seek institutional compassion and demonstrate their productivity within a neoliberal game that sets a price on human life and dignity.
Anne Macduff, “Constructing the ideal citizen: good character, citizenship values and the Australian national identity”
The ‘good character test’ is used in various areas of Australian law, including as one of the general eligibility requirements for Australian citizenship by conferral. This paper argues that the discussion of the good character test in the 2011 decision of Zheng (2011) 121 ALD 372 has been enormously influential in shaping the contemporary legal contours of Australian citizenship. This paper proposes that the good character test in Zheng has not only secured the acceptance of certain official values as central to legal status of Australian citizenship, it has also ensured that these values are central to understanding the traits and behaviours of those considered part of the Australian community. While this vision of national identity does not convey the racial and gendered dimensions as explicitly as Russell Ward’s concept of the ‘Australian bushman’, it nonetheless has some problematic consequences. This paper analyses Zheng and traces its influence on subsequent decisions in order to critically analyse the contemporary legal construction of a limiting form of national (be)longing.
Melany Toombs, “The National Subject: The acquisition and removal of citizenship from a gendered perspective”
This chapter examines how states determine membership, and the interplay that gender and power relations in society have on law and law’s regulation in this space. It sets out how the national subject, the citizen, is a space in which gender, sexuality and race keenly interact with the everyday lives of individuals. This chapter examines to whom states grant citizenship and from whom it is withdrawn. In doing so, this chapter illustrates how normative expectations of a desirable citizen are constructed by conceptions of law, gender, race and sexuality. Granting citizenship is predicated on birth, descent or acquisition via marriage or migrant application, however these categories in turn are only bestowed on those people considered desirable citizens. The chapter also argues that the withdrawal of citizenship, through marital denaturalisation or terrorism stripping, demonstrates who the state considers is an undesirable citizen and thus no longer worthy of citizenship status.
Kate Ogg and Olivera Simic, “Broken bonds: Australia’s COVID-19 border policies and transformations of conceptualisations of citizenship”
In 2022, Ogg and Simic conducted qualitative, semi-structured interviews with Australian citizens affected by Australia’s international and domestic COVID-19 border laws and policies. While the emerging literature on this topic has a health and economic focus, Ogg and Simic are investigating the legal and socio-political implications of COVID-19 border laws and policies. In this work in progress presentation, Ogg and Simic will discuss their preliminary thematic and theoretical analysis of the interview data. One of the primary themes emerging from the data is the participants’ changed perceptions, understandings and enactments of citizenship as a result of a period of crisis or disruption. While participants had multifaceted beliefs about citizenship before COVID-19 (including social citizenship, citizenship as status and diaspora-based citizenship) they had shared experiences of citizenship when they became stranded at home or abroad. These shared experiences most strongly parallel Irving’s theorisation of citizenship as ‘home’ and loss of citizenship as ‘injury’, which is based on her study on women who became denationalised on marrying a foreign spouse. However, the fundamental distinction in our study is that Australians who became stranded as a result of COVID-19 border measures never formally lost their citizenship. We extend existing theorisations of the meaning of citizenship by drawing on Stauffer’s ideas of ethical loneliness and suggesting that ‘loss’ of citizenship can often be followed by a transformation of conceptualisations of citizenship –in our study, we observed a shift towards appreciation of differentiated citizenship and, in some cases, a stronger commitment to active citizenship.
Jaskiran Kaur Rekhraj, “Citizenship and statelessness: the issue of belonging and place in the world”
In this paper I would like to explore the interaction between citizenship laws and statelessness and the effects on people in the nation state. The concept of nation-building, belonging and community have been built on gendered, racial and ethnic grounds for many countries with colonial pasts. Citizenship laws remain within the realm of each nation state, as does the capacity to ensure that the issue of statelessness and belonging are addressed. The ratification of international human rights instruments which can impact the lives of marginalised people in a territory is dependent on the willingness of a country to participate in the global arena. Patriarchal notions of fathers being heads of the family have resulted in the citizenship laws of many countries resulting in mothers being unable to pass on their nationalities to their children in certain situations. Intersectional issues of gender, race, ethnicity, class, gender diversity and sexuality leave people stateless and contribute to the lack of social belonging. In Australia, the High Court’s decision in Thoms and Love has left First Nations people born overseas in a legal limbo of not being Australian citizens but also not aliens under the Constitution. The legal consequences of such determinations of who do not belong in a nation state have far ranging impacts on the day to day lives and futures of people who are denied a place in our communities including their ability to work, study, ability to move internally and to have a recognised identity.
Makiko Nishitani, “‘Innocent illegal’ migrants: exploring ‘citizenship’ and belonging through the migration of Pacific children to Australia”
The ‘close ties’ visa was once available for ‘innocent illegals’ who ‘arrived in Australia as a minor, spent their formative years here, and became illegal as a minor’ (Migration Amendment Regulations 2003). This visa was created in the mid-1990s to apply to those who reached 18 years old and had been brought to Australia as minors by guardians or parents without valid immigration statuses. However, the program was ended in November 2005 due to government fears about the alleged ‘abuse’ of the system (Acosta 2017). The termination of the scheme meant that these people lost their means to regularise their migration status and have a future pathway to Australian citizenship. Drawing on qualitative interviews conducted in 2019 in rural Victoria, this paper examines the experiences of three young Pacific Islander men brought to Australia by their parents when they were children, who reached adulthood in Australia without legal status. The current discussion on irregular migrants in Australia focuses on adult migrants’ agency and explores how they are, in fact, partly included in society in various contexts: although they do not legally belong to the host nation, they can socially belong to communities with other Australian citizens. While the concept of differential inclusion challenges the state’s absolute power to control migrants, including the belonging of people who migrated as minors in this discussion will highlight the need for a more nuanced understanding of the agency of people who wrestle with their illegality and fight for their membership in the nation-state.
Kim Rubenstein, “Overcoming the ‘migration integrity’ paradigm - moving from citizenship as exclusion to citizenship as nation-building"
Since the mid 19th century onwards, colonial concepts of Australian identity have been framed by the ‘other’. This found expression in the framing of the Australian constitution and has continued to this very day, in determining legal questions about citizenship in Australia. An emphasis on maintaining immigration policy ’integrity' governs many decisions and a particular case study will be examined to highlight this ongoing trend. This paper explains this reality and asks, is it possible to move Australian citizenship policy from immigration restriction and exclusion to an alternative prism of nation building and inclusion?
Amy Hamilton, “Metaphors of citizenship: Tethered/severed bonds and ties in Love and Benang”
Despite the differences in minority and majority opinions in Love v Commonwealth of Australia; Thoms v Commonwealth of Australia [2020] HCA 3 (‘Love’), a commonality amongst the judgments is the tendency to refer to citizenship as a bond –perhaps reflecting a broader vision of citizenship as “something that binds, fastens, confines, or holds together” (Macquarie Dictionary). Taking Love as a starting point, I focus on the use of the bond metaphor to imagine citizenship in the context of the case considering whether Aboriginal Australians who were not statutory citizens of Australia were ‘aliens’ under the Australian Constitution and would therefore be able to be deported by the Government. This analysis is guided by Lakoff and Johnson’s work on metaphor alongside Sara Ahmed’s focus on figures of speech as crucial to the emotionality of texts. I then contrast this metaphor of bond to the untethered representations of citizenship in Kim Scott’s 1999 novel Benang: from the Heart which is centred around the motif of floating. This paper argues by reading Benang together with Love, it is possible to contrast this floating subjectivity to the metaphor of the bond as used in Love to draw out the ambivalence that has always been at the heart of imagining citizenship as a common bond. This ambivalence is particularly acute where that imaginary is used in the settler- state of Australia with its history of coercive citizenship practices.
Jordana Silverstein, "The emotions of statelessness and citizenship"
While also being a legal category and status, citizenship at times comes freighted with emotions. In this paper I will draw on a series of interviews I have conducted with people who were stateless when they migrated to Australia in the twentieth century and explore the emotions that arise as they discuss becoming Australian citizens. By doing this, this paper offers the opportunity to reflect on the discourses and words that stateless people draw on as they articulate the experience and fact of getting citizenship, either for the first or the second time. That is, it opens up a consideration of what it can mean for people when they acquire Australian citizenship: how do they feel a sense of an ability to claim, as well as feel claimed by, Australia? Through these interviews it becomes clear that citizenship –in its lack and its acquisition –can carry with it a series of specific emotions. Looking at how these emotions are expressed provides the possibility for deconstructing the emotions of belonging and nationalism that citizenship can imbue, and thereby critiquing the formative place the nation-state claims for itself in providing people with a mode of definition.
Taking as one signal example the acquisition of the Australian passport, this paper will show how citizenship becomes materialised and enacted as a particularly affective category in people’s lives. Through this it will show the particularity of the emotional experience of gaining citizenship, and gaining a passport, in previously stateless people’s lives.
Peter Prince, “How did Australia’s High Court get the history of Indigenous belonging so wrong?”
While not disputing the outcome of the landmark Love & Thoms case –which finally recognised, 120 years after Federation, the constitutional belonging of First Australians under white settler law -the High Court could not have been more misleading about the history of that belonging. According to Justice Gageler, in Australia it had:
... never been thought necessary to enact legislation along the lines of the Indian Citizenship Act 1924 (US), specifically conferring the status of subjects or citizens on members of indigenous societies.
It’s difficult to think of a more misinformed statement. It can only be concluded the High Court overlooked Western Australia’s Natives (Citizenship Rights) Act 1944, even though it was still in operation until the early 1970s. Western Australia did look to the United States. But instead of adopting current US legislation recognising the birthright nationality of First Nations people, it copied racially discriminatory provisions on citizenship from the outdated 1918 US Federal Code, with strong echoes of the notorious ‘Black Laws’ from the American South in the 1820s and 1830s.
Both the majority and minority in Love& Thoms claimed that after European settlement, First Nations people were always regarded as British subjects and part of the Australian political community. Why then did Oodgeroo Noonuccal lament in 1962, in a poem presented to the Federal Council for the Advancement of Aborigines:
Make us mates, not poor relations, Citizens, not serfs on stations. Must we native Old Australians In our own land rank as aliens?
Susan Hutchinson
View more information about the event here or register for the event here.
Download program and abstracts.