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ANGE:

From Schwartz Media, I’m Ange McCormack. This is 7am.

At the end of last year, the government rushed through laws that have largely flown under the radar.

Changes to the Citizenship Act, now allow judges to strip a dual citizen of their Australian citizenship… if they go against so-called ‘Australian values’.

But, what are Australian values? And should they be defined, anyway?

Today, constitutional and citizenship expert, and contributor to The Saturday Paper Professor Kim Rubenstein on why a new set of laws are going to force us to reckon with what it means to be Australian.

It’s Tuesday, January 23.

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ANGE:

Kim, we're approaching January 26th, and at this time of year, we always see a lot of discussion and debate around things like national identity. And you know, what it means to be Australian and what Australian values are. Before we get to some of those bigger questions, what have we seen in the lead up to January 26th this year?

KIM:

So in the lead up to January the 26th this year, which I think is a more sensitive lead up in light of the outcome of the referendum, we're seeing attention to companies like Woolworths, for instance, publicly choosing not to sell Australia Day merchandise.

Audio excerpt – News Reporter:

“Peter Dutton has marched straight in, accusing the supermarket giant of being more focused on woke than providing customer service for Australians…”

KIM:

We've actually seen, interestingly, the coalition issuing a press release highlighting the rates that have dropped, in their opinion of, people passing the citizenship test.

Audio excerpt – Speaker:

“obviously there's something going wrong here in regards to not only the test, but also how these people are being taught the values, the basic principles of being an Australian.”

KIM:

We've seen discussions about local councils and their right to determine when they will run their citizenship ceremonies.

Audio excerpt – News Reporter:

“Now, you'd think that receiving your Australian citizenship on Australia Day would be a great honour but a growing number of councils are refusing to hold events this year.”

KIM:

and there's been a bit of a tussle as to whether, they can choose not to hold those on Australia Day.

Audio excerpt – News Reporter:

“Thanks to the Albanese government, which revoked a rule that effectively forced local councils to hold ceremonies on Australia Day.”

KIM:

And we're seeing certain sections of the press really, inflaming these sorts of discussions, in ways that are not particularly healthy and does reflect on the ways in which we've seen historically that citizenship becomes a device for these sorts of more polarised discussions. And that's something that, I think, is concerning for questions of social cohesion and a more inclusive notion of national identity.

ANGE:

And those stories come up like clockwork every year, but they're kind of surface level issues when we think about what it means to be an Australian citizen. Your work involves going much deeper, by exploring the constitution, so, how has Australia grappled with that question of what it means to be an Australian citizen over time?

KIM:

So look, it's a really, I think, profound question in relation to notions of law and the relationship of law with national identity. And so much of that does go back to the starting point of our Constitution itself and where citizenship fits in the Constitution. And the reality is that it doesn't, when the framers were determining the content of the Constitution and what sort of heads of power the Commonwealth would be able to make laws over, there was a deliberate decision not to include citizenship, in the Constitution for that purpose.

Audio excerpt – Speaker:

“Prime Minister Chifley and Immigration Minister Caldwell arrive at the Albert Hall, Canberra, for an historic ceremony. Today for the first time, certificates of Australian citizenship are presented.”

KIM:

So from 1901 up until the 26th of January 1949, all Australians were British subjects. There was no formal Australian citizenship.

Audio excerpt – Speaker:

“Previously, all Australians were British subjects. Now, under the 1948 Nationality and Citizenship Act, these men of seven different nationalities are the first aliens to become Australian citizens and British subjects.”

KIM:

And so from then up until 1987, we were both Australian citizens and British subjects. And it was only after that we then dropped British subject status. Well, after the British did…So, yes, citizenship as a term only came into force in, in the late 1940s. And that act itself doesn't really give much content to what it means to be a citizen. It's really just about who is and isn't a citizen and how you can lose your citizenship.

You actually have to look to other pieces of legislation that bestow rights that attach to that status. And when you do that, you see that that's no real equality of citizenship. And the best example coming back to the theme of Australia Day is that Indigenous Australians were always British subjects, were always Australian citizens, but they were not entitled to voting rights until 1962, or internal movement rights or other aspects that we think of, you know, as fundamental, but were not guaranteed to all people, even if they were citizens.

ANGE:

It's really, really fascinating to learn, Kim, as I am learning right now, this idea of citizenship is a relatively new concept in Australia. And I think why that feels so surprising is because the way politics and the media talks about citizenship makes it seem like it's this kind of sacred thing, I suppose.

KIM:

Yes.

ANGE:

If we fast forward to now...I want to ask you about some new laws the government rushed in at the end of last year that raise lots of questions about who gets to be a citizen. And as I understand it, this change started with a High Court challenge. Can you tell me what happened?

KIM:

So just towards the end of last year, as the parliament's sitting term was coming to an end, there were changes that were rushed through to the Australian Citizenship Act in relation to the stripping of Australian citizenship.

And in a way to understand what happened at the end of last year. We also have to put in the 2015 changes to the Act. And at the end of 2015, at the time of heightened terrorism, and attention to terrorist activity around the world, the government introduced a new provision for the cessation or stripping of citizenship, effectively, if you were someone who had conducted, activity defined as terrorist activity, you would automatically have your citizenship stripped.

And the, the changes flowed on from a challenge to those laws by, a person called Abdul Nacer Benbrika.

Audio excerpt – News Reporter:

“Benbrika was convicted in 2008 of plotting terror attacks on Australian landmarks. Then Home Affairs Minister Peter Dutton stripped Benbrika of his citizenship.”

KIM:

who had had his citizenship stripped and challenged it as unconstitutional on the basis that it was the government of making a decision about whether a person could continue to be an Australian citizen.

Audio excerpt – News Reporter:

“But last month the High Court ruled the laws were invalid, prompting the Albanese government to hastily pass new laws giving courts the power to revoke citizenship.”

KIM:

And so the law was changed at the end of the year, and whereby now the minister must make an application to a court in order to apply for someone to be stripped of their citizenship.

Audio excerpt – News Reporter:

“Only courts, not politicians should be able to dish out punishment for crimes…legal experts call the ruling straightforward and unsurprising…”

KIM:

So one of the interesting aspects about stripping of citizenship, it only applies to dual citizens. Two people can do exactly the same thing, but only the dual citizen can have their citizenship stripped.

And the stripping of someone's citizenship is a major big deal in the sense that, of course, without it you don't have access to the things that you would hope, hm, the rights that go with it.

And what this step has done, which is, you know, unprecedented for citizenship in Australia, is it's now involving the courts in determining matters to do with citizenship.

And the wording of the legislation includes the judge having to be clear before stripping citizenship in making that decision as to whether the person's conduct goes against Australian values, but there is no reference to Australian values in the Australian Citizenship Act.

ANGE:

After the break, if Australians can now be judged on 'Australian values' in court, what even are they?

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ANGE:

So Kim, with these new laws meaning a judge is going to have to interpret the concept of "Australian Values", how fraught is that task?

Because Australian values aren't formally defined anywhere. And how I might interpret them could be completely different to how you, or someone on the street might. So how can a judge go about thinking about these sorts of questions?

KIM:

I think its fraught on multiple levels…but one of the things, Ange, in my writing about citizenship, that this discussion really is sort of fleshing out is that when we think about citizenship and we've been talking in our right about it as a legal concept.

There are also other ways in which people think about and talk about citizenship, their citizenship as legal status, but their citizenship as sort of political activity. We talk about being an active citizen, of being a participant in a political democracy. So that's voting, which is one thing, but it may be other aspects of voicing your opinion. You know, speaking on podcasts and contributing to public discussion and thinking about political issues. But you don't have to be a legal citizen to do that in Australia.

And then there's citizenship like rights, Socio-Economic rights, which, again, are not always linked to legal status. But the fourth way I often talk about it is citizenship as identity. Now this is again just so fundamentally interesting in Australia because the legal status and identity haven't always gone hand in hand.

And in many ways, what this shows up is that there's this real gap between law and identity, and these changes in law show the problematisation of that, because we don't really have clarity in law about these issues. And maybe we shouldn't, because maybe law is not the right tool for these sort of profound questions that really speak to fundamental aspects of membership in national identity and social cohesion.

ANGE:

Right so you’re saying that maybe the law can’t properly define citizenship and values the way we all subjectively feel it, and its in that gap that these ideas can become so politicised and actually divide us instead of bringing us together. You’ve done consulting work with various governments on citizenship law and the constitution. How have you seen this issue become politicised or amplified?

KIM:

Yes. Well we've seen different periods of time where this has been amplified, one in particular that, I could sort of sit in the first row of was the introduction in 2007 of a test for Australian citizenship. So the Howard government introduced a written test that people would have to undertake…

Audio excerpt – News Reporter:

“The Prime Minister has spoken out this morning about his government's tough new proposals for citizenship.”

KIM:

and it got quite a lot of publicity at the time because one of the test questions, you know, related to Don Bradman and whether people knew whether he was a cricketer, for instance.

Audio excerpt – John Howard:

“People will find when they do the test that its fairly straightforward if you have a working knowledge of English and you have some understandings and have taken some interest in the society around you in which you’ve lived for 4 years, you won’t have any trouble passing it.”

KIM:

And then with the Rudd government being elected, it set up a review, an independent panel to review the test.

Audio excerpt – David Kochie:

“Why don’t you give them a handbook to explain who Sir Don is before they do their test, you can’t drop him!”

Audio excerpt – Kevin Rudd:

“Look I’m unaware of any plans on our part to give, to give the Don the axe! I’m not lining up in that camp.”

KIM:

I was invited to be the sort of academic expert on that panel. And one of the things in back in 2008, when we reviewed the test that we determined shouldn't be part of the test because it's not part of the Citizenship Act is a reference to Australian values.

But between then 2008 and now in 2020, Scott Morrison's government reintroduced into the citizenship test in a very, unpublic way. A new part to the test, which requires you to pass five questions about Australian values. So this is, I think, a very concerning step in relation to the place of citizenship in encouraging social cohesion.

ANGE:

And just finally Kim, the timing of this discussion is obviously very ripe. You know, we're heading into January 26th. So we have any general society discussions around what it is to be Australian or unaustralian, or if wearing certain merchandise is more Australian or not, in, in celebrating a public holiday.

And on the other hand, we also have a really legally complex and fraught discussion happening about the idea of Australian values, you know, legal sense. And so these two things are happening at the same time. And it is both of those conversations are forcing us to think about Australian values and defining them. Should we be doing that?

Do you think after you know all of your work pondering constitutional matters and matters of the nation? Is there value in having that conversation or is it actually too fraught to even define?

KIM:

I think there's certainly value in having the conversation, but not in a partisan political sense. I think once it goes down the partisan political framework, it's too divisive. And, it's not consistent with the concept of citizenship and membership, which has a more pluralistic acceptance, of the ways in which we as humans act and participate in society. Sure, there are sort of ground rules in a liberal democratic framework in terms of, respect for the other and being able to live, and have our liberty protected.

But, you know, beyond that, there are so many other ways in which we can all live proud Australian lives without dictating what that actually means. And so I think you really need to distance it from that political context.

And that would be my hope that Citizenship shouldn’t be used as a form of punishment. Citizenship has the potential to be such a positive nation building tool for society, and these are all aspects of citizenship as exclusion and as punishment, as opposed to the positivity that something like citizenship and the values that associate with membership, could be.

ANGE:

Kim, really fascinating conversation. Thank you so much for your time.

KIM:

My pleasure, Ange.

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ANGE:

Also in the news today…

Union members at the ABC have passed a vote of no confidence in managing director David Anderson… for failing to defend the integrity of the broadcaster and its staff from outside attacks.

And …

Families of hostages held by Hamas in the Gaza strip have protested outside the home of Israeli Prime Minister Benjamin Netanyahu … demanding a deal be done to secure their immediate release.

This comes after Prime Minister Netanyahu rejected demands from Hamas to withdraw the Israeli army from Gaza, in exchange for the release of all remaining hostages.

I’m Ange McCormack, this is 7am. We’ll be back again tomorrow.

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