Aux armes, citoyens!

Terrorist

That’s the rallying cry of the chorus to La Marseillaise, but these days in Australia it’s not quite as simple as that.

Of course, you can join the Australian armed forces, if they accept you.  There doesn’t even seem to be much of a problem if you serve in the armed forces of some other nation state of which you are also a citizen (most commonly for Australians, I expect, Israel, though there are probably also dual nationals serving in the British armed forces) or even one where you are not (such as, say, the French Foreign Legion).  What becomes more problematic is if you get involved in something more irregular, such as not fighting for a government, or fighting against a government.

Australia enacted its own legislation against getting involved in that sort of thing back in 1978.  The legislation included a prohibition on recruiting for foreign government armed forces in Australia.  That Act has now been repealed and its provisions, augmented as part of the “Foreign Fighters” suite of legislation, folded into part 5.5 of the Commonwealth Criminal Code .

Currently it’s all about those Australians who have rushed off to Syria and Iraq to fight for (and in at least two cases, against) “ISIS”/ISIL. This is prescribed as a “terrorist organisation” by the Australian Government, which makes it an offence to fight for it or to support it. In addition, there are offences for even travelling to the area where the fighting is going on unless you can prove (the onus is on you) that your sole reason was some valid, non-fighting reason set out in the legislation. Returned fighters can also be subjected to control orders. David Hicks was subjected to these on his return to Australia following his release from prison.

The week before last our prime minister and Peter Dutton, Minister for Immigration and Border Protection (just have to add that because you may not know who he is otherwise) made the following joint announcement:

The Commonwealth Government intends to update the Australian Citizenship Act 2007 so dual nationals who engage in terrorism can lose their citizenship.

The Minister for Immigration and Border Protection will be able to exercise these powers in the national interest where a dual citizen betrays our country by participating in serious terrorist-related activities.

The new powers will apply to dual citizens who fight with or support groups such as ISIL, or Daesh, as well as so-called ‘lone wolves’, whether in Australia or on foreign soil.

The changes will be consistent with our international legal obligation not to leave a person stateless. There will also be safeguards, including judicial review, to balance these powers.

Orwellianly, the headline to the announcement was “New measures to strengthen Australian citizenship” – because apparently citizenship is strengthened by making it easier to take away by administrative fiat.  Dutton later made clear that any judicial review proposed would go to the process, not the merits, of any deprivation. More bizarrely, it bore the legend: “E&OE.” For those not in the know, this stands for “Errors and omissions excepted” and is commonly encountered as a kind of arse-covering catch-all on solicitor’s bills, surveyors’ reports, and the like. When did this sort of thing creep into ministerial announcements?

The announcement went on to offer a rationale for the proposed changes (my numbers added):

[1] Since 1949, Australians with dual citizenship who fight for a country at war with Australia have forfeited their citizenship.

[2]There should be no difference in how we treat Australians who join a hostile army and those engaged in terrorism – both are betraying our country and don’t deserve to be citizens of Australia.

[3] Regardless of how we gain our citizenship, it is an extraordinary privilege with rights and responsibilities for all of us.

(1) is at least literally true.

There was no such thing as Australian citizenship until 1949.

Citizenship in Australia is a creature of statute. Historically and I think at international law it is probably still more accurate to speak of nationality rather than citizenship. At federation, Australians were either aliens or British subjects. Other than naturalisation, this was a matter of common law until in the UK it was codified by legislation in 1915 (I suspect motivated by issues arising from WWI) which was largely adopted or mirrored by the Australian Nationality Act 1920.

Following World War II, there was a rethinking of nationality and citizenship within the British Empire. In Australia this led to the enactment of the Nationality and Citizenship Act 1948 . That Act also (as was so often the way at the time) still mirrored UK legislation in many respects. One of these was section 18 of that Act, which contained a new provision which in a slightly modernised form survives as section 35 of the Australian Citizenship Act 2007:

Service in armed forces of enemy country

(1) A person ceases to be an Australian citizen if the person:

(a) is a national or citizen of a foreign country; and

(b) serves in the armed forces of a country at war with Australia.

(2) The person ceases to be an Australian citizen at the time the person commences to so serve.

Both the previous UK and Australian legislation provided for revocation of a grant of naturalization where somebody had aided the enemy in time of war (and for other reasons such as conviction of a crime or fraud in obtaining the grant).

It is worth noting that at that time this section could only apply in 1949 to those with dual citizenship by birth because otherwise those obtaining the citizenship of another country automatically lost their Australian citizenship.  (This only changed in 2002.)  So this section was really just another form of election for people who elected (actually they could have been conscripted) to act upon their allegiance to another state.  It operated by operation of law on facts which were assumed to be juridically clear-cut – a bit like, for example, the way in which your will would automatically be revoked if you subsequently married.  There might be a tussle about the facts in their application to a particular circumstance (did a person serve in the armed forces? It was probably assumed that it would be more clear-cut whether the country was at war with Australia at the time.) but once they were established the consequence followed independent of any ministerial determination – even though a decision to refuse the grant of a passport or admittance to Australia would necessarily be administrative.  (PS: the latest proposal looks like being for something like this for “foreign fighters” which begs the question still as to how organisations or regions are proclaimed – will it be subject to parliamentary disallowance?)

(2) Is more questionable.

First of all, it totally misunderstands the basis on which the precursor to section 35 operated.  Betraying one’s country was not the issue when the section was enacted and still is not, for the reasons set out already.  (By the way, such a point was expressly not taken in the rather amazing English case of Prince Ernest of Hanover – but then he was a toff.)

Secondly, where does this idea of “deserving” to be an Australian citizen come into things?

Thirdly, things are really getting murky when we start saying that a terrorist necessarily betrays Australia.  What exactly is a terrorist?  Who decides?  Different countries make different decisions; one man’s [sic] terrorist is another man’s freedom fighter, after all, and not all terrorists are engaged in terror against Australia.

Fourthly, if betraying our country is the issue, aren’t such people traitors?  The normal recourse of a nation state against traitors is to catch them and punish them, judicially, even if that involves the occasional over-reach, as most people now agree occurred in the case of William Joyce (aka Lord Haw-Haw).

(3) is the most insidious.

Is citizenship really a privilege? Surely not in the sense that it is some kind of optional extra benefit that can be withdrawn.  It is a status which in turn is a springboard to all sorts of rights – most importantly not to be turned away if returning here and to be allowed to stay here.

It is true that governments have always maintained that being given a passport is almost an optional extra (for example, back in the 70s, Ananda Marga members were refused passports) but that is an assertion which can only survive politically by being sparingly asserted even if the cancellation of passports has become more commonplace in recent years.

Back in the cold-war years we used to hear of Eastern-bloc countries depriving dissidents (and, actually I now discover, Jewish emigrants) of their citizenship and refusing them passports and thought: how could a state treat its people so oppressively, so scandalously a.t odds with its high [ha!] ideals.  Oh how the times have changed!

It’s not as if the “me, too” Labor Party is covering itself in glory on this issue any more than our beloved government.

Sigh.

This is an incomplete post which has been sitting here in draft for a while.  Plenty more have written more cogently at length on this topic.  So I’ll stop here and leave it to, for example, Sangeetha Pillai.

One Response to “Aux armes, citoyens!

  1. Food, fear and freaking out | Neil's Commonplace Book Says:

    […] Marcellous, a barrister in Sydney, posted Aux armes, citoyens! – a must […]

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