Advancing citizenship: The legal armory and its limits

Theoretical Inquiries in Law

Volumn 8, Issue 2, 2007, Pages

  Rubenstein, Kim ^a  

^a AUSTRALIAN NATIONAL UNIVERSITY   (Australia)

Author keywords

[No Author keywords available]

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EID: 34547317832     PISSN: None     EISSN: 15653404     Source Type: Journal    
DOI: 10.2202/1565-3404.1159     Document Type: Review

References (79)

1. CAROL HARLOW & RICHARD RAWLINGS, PRESSURE THROUGH LAW (1992).
2. id. at 291.
3. Pronounced Ah-may. Given that identity is part of what drives individuals to make their claims, recognition of how people pronounce their names is an affirmation of who they are.
4. For recent scholarship addressing some of the limits of law in bringing about social change, see also Orly Lobel, The Paradox of Extra-Legal Activism: Critical Legal Consciousness and Transformative Politics, 120 HARV. L. REV. 937 (2007).
5. A central theme to KIM RUBENSTEIN, AUSTRALIAN CITIZENSHIP LAW IN CONTEXT (2002) is the way law errs on the side of exclusion rather than inclusion when defining membership of the community.
6. Another legal term used for citizenship is nationality. Nationality is often referred to when discussing formal membership in the international context, whereas citizenship is the term used for formal legal membership in the national, domestic context. For further discussions about the distinction, see Kim Rubenstein & Daniel Adler, International Citizenship: The Future of Nationality in a Globalised World, 7 IND. J. GLOBAL LEGAL STUD. 519, 521 (2000).
7. This divide has been highlighted by Linda Bosniak, Universal Citizenship and the Problem of Alienage, 94 NW. U. L. REV. 963 (2000)
8. and Karen Slawner, Uncivil Society: Liberalism, Hermeneutics, and Good Citizenship, in CITIZENSHIP AFTER LIBERALISM 81 (Karen Slawner & Mark E. Denham eds., 1998).
9. One piece that Bosniak highlights in particular is Will Kymlicka & Wayne Norman, Return of the Citizen: A Survey of Recent Work on Citizenship Theory, 104 ETHICS 352 (1994), in which the authors review the growing literature by theorists on citizenship and its value as a normative project, in particular "citizenship as desirable activity" and "citizenship as identity."
10. See Bosniak, supra, at 963.
11. This legal distinction is determined through the existence of the Australian Citizenship Act, 1948, and the Migration Act, 1958, in which each status is defined. The consequences of the status are set out more clearly in the material below on the legislative consequences of citizenship.
12. BRYAN TURNER, CITIZENSHIP AND CAPITALISM: THE DEBATE OVER REFORMISM 135 (1986).
13. This has been discussed also in Rubenstein & Adler, supra note 6, at 521-22.
14. Bosniak, supra note 7, at 965.
15. Id. at 966. Peter Spiro categorizes the tensions between citizenship as exclusion and citizenship as inclusion as the "citizenship dilemma."
16. See Peter Spiro, The Citizenship Dilemma, 51 STAN. L. REV. 597 (1999).
17. In RUBENSTEIN, supra note 5, chapter 5 is devoted to listing and analyzing hundreds of statutes that discriminate according to legal status or membership level, which in essence represent the consequences of citizenship.
18. In Australia, to vote one has to be eligible under the Commonwealth Electoral Act, 1918.
19. In Australia, the Migration Act, 1958.
20. I discuss this also in Kim Rubenstein, The Lottery of Citizenship: The Changing Significance of Birthplace, Territory and Residence to the Australian Membership Prize, 22 L. CONTEXT 45 (2005).
21. See Minister for Immigr., Local Gov't & Ethnic Affairs v. Roberts (1993) 41 F.C.R. 82, 86 (Einfeld, J.).
22. See Lawyers Challenge Citizenship Law (ABC Radio National radio broadcast Sept. 2, 2003), available at http://www.abc.net.au/worldtoday/ content/2003/s937376.htm.
23. Bosniak, supra note 7, at 966.
24. With the introduction of the Australian Citizenship Act, 1948, on January 26, 1949.
25. This has also meant that there are non-citizen British subjects who are still entitled to vote in Australia.
26. RUBENSTEIN, supra note 5, ch. 2.
27. See in particular Re Patterson (2001) 207 C.L.R. 391, 480-81 (Kirby, J.).
28. The Federal Parliament has power to make laws in relation to "naturalization and aliens." AUSTL. CONST. § 51(xix).
29. I have addressed this issue directly in several articles. See, e.g., Kim Rubenstein, Citizenship and the Centenary: Inclusion and Exclusion in 20th Century Australia, 24 MELB. U. L. REV. 576 (2000).
30. For an analysis of the reasons for this, see Kim Rubenstein, Citizenship in the Constitutional Convention Debates: A Mere Legal Inference?, 25 FED. L. REV. 295 (1997).
31. U.S. CONST, amend. XIV, § 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.
32. The Papua New Guinea Independence Act, 1975, had authorized regulations that effected their loss of citizenship, explained further infra note 37.
33. Section 10 of the Australian Citizenship Act, 1948.
34. Some of the material in this Section on Susan Walsh appears also in Rubenstein, supra note 16.
35. He was born in New South Wales and died in 1982.
36. (2004) F.C.A. 139, para. 32.
37. Id. para. 33.
38. See RUBENSTEIN, supra note 5, at 90 n. 139.
39. Section 10 provided at that time that birth in Australian territory was sufficient to become an Australian citizen, provided their parent was not a diplomat or an enemy alien when the birth occurred. See also RUBENSTEIN, supra note 5, at 90.
40. Further details about citizenship by descent are set out in RUBENSTEIN, supra note 5, at 94 passim.
41. On September 10, 1975, under section 6 of the Papua New Guinea Independence Act, 1975.
42. RUBENSTEIN, supra note 5, at 96.
43. Section 10C of the Australian Citizenship Act, 1948.
44. As stated in the judgment of Justice Dowsett in the Federal Court of Australia. Walsh v. Minister for Immigr. & Multicultural Affairs (2001) 67 A.L.D. 81, para. 1.
45. Interestingly, in recent argument before the High Court in the matter Koroitamana v. Commonwealth of Australia (2006) H.C.A. 161 (Apr. 5, 2006) the Solicitor General in answering the question "who could not possibly answer the description of alien" stated "a person born in Australia to Australian parents." Ms Walsh satisfies this answer, but the government still strenuously espouses the view that she was not an Australian citizen in Walsh.
46. The Australian Citizenship Act, 1948, § 52, provides for administrative review of certain decisions under the Act to the Commonwealth Administrative Appeals Tribunal.
47. Walsh and Minister for Immigr. & Multicultural Affairs (2002) A.A.T.A. 378, paras. 21-23.
48. Minister for Immigr. & Multicultural & Indigenous Affairs v. Walsh (2002) F.C.A.F.C. 205, para. 60.
49. I had written about Susan Walsh's case in the AAT and Federal Court in my then recently released book, RUBENSTEIN, supra note 5, at 70, 90, 167, 173. In my view, the situation in Papua New Guinea raised fundamental questions about the power of the state to strip individuals of their citizenship. There were important due process issues for individuals unaware of their change of legal status. I had contacted Susan Walsh's solicitor to let him know that I had written about the case and in the course of those communications he sought my assistance in the matter.
50. Transcript of oral argument, Walsh v. MIMIA B41/2002 (June 25, 2003), available at http://www.austlii.edu.au/au/other/hca/transcripts/2002/B41/ 1.html.
51. She was eligible for and obtained a Resident Return Visa (RRV). These are for permanent residents, or former citizens who have lost their citizenship, to return to Australia. Her three children then obtained their permanent residence visas a month or so later.
52. Email from Surinder Sidhu to Author (Sept. 14, 2003) (on file with author).
53. See Rubenstein, supra note 16.
54. This is material prepared by the Executive branch to guide decision-makers in the application of the law. It is available for purchase from the Department of Immigration and Citizenship. The particular instructions referred to were ACI No. 4, File No. 97/002289 (Mar. 23, 2001) (on file with author).
55. In a project analyzing access to citizenship, these two approaches are recognized as central to access to citizenship, in addition to residence in territory. See T. ALEXANDER ALEINIKOFF & DOUGLAS KLUSEMEYER, CITIZENSHIP POLICIES FOR AN AGE OF MIGRATION 7-20 (2002).
56. Subject to procedural requirements set out within the Act.
57. On March 1, 2007. When it comes into force, on July 1, 2007, it will be known as the Australian Citizenship Act, 2007.
58. This was due to her case beginning in the Administrative Appeals Tribunal and being appealed through the courts.
59. Transcript of oral argument, Walsh v. MIMIA B41/2002 (June 25, 2003), available at http://www.austlii.edu.au//cgi-bin/disp.pl/au/other/ HCATrans/2005/66.html?query= Re%20MIMIA;%20ex%20parte%20Ame.
60. Catherine Dauvergne, Citizenship with a Vengeance, 8 THEORETICAL INQUIRIES L. 489 (2007);
61. Alexandra Dobrowolsky, (In)security and Citizenship: Security, Immigration, and Shrinking Citizenship Regimes, 8 THEORETICAL INQUIRIES L. 629 (2007).
62. Email from Martin Clutterbuck, Solicitor in the Refugee Application, to Author (Oct. 14, 2006) (on file with author).
63. Warning Shots Fired to Disperse Protestors, SYDNEY MORNING HERALD, Nov. 22, 2006, available at http://www.smh.com.au/news/world/warning-shots-fired-to-disperse-protesters/ 2006/11/21/1163871405011.html.
64. Section 10 of the Australian Citizenship Act, 1948.
65. See further information about this change in RUBENSTEIN, supra note 5, at 93. For a theoretical examination of the links between migration law and citizenship in Australia and Canada,
66. see CATHERINE DAUNVERNGE, HUMANITARIANISM, IDENTITY AND NATION (2005).
67. (1985) 159 C.L.R. 550.
68. Note also the case Molisi v. Minister for Immigr. & Multicultural Affairs (2001) F.C.A. 420, where the citizenship status of the children did not assist the parents in their review of the Minister's decision not to allow them to remain in Australia.
69. Singh v. Commonwealth of Australia (2004) 222 C.L.R. 322.
70. Singh v. Commonwealth of Australia, (2004) 222 C.L.R. 322, 408.
71. There is also the provision to allow those born in Australia who then continuously reside in Australia for ten years to also be recognized as citizens by birth. Section 10 of the Australian Citizenship Act, 1948.
72. JOINT STANDING COMM. ON MIGRATION, PARL. OF THE COMMONWEALTH OF AUSTL., AUSTRALIANS ALL: ENHANCING AUSTRALIAN CITIZENSHIP 100-01 (1994).
73. Id.
74. Id. para. 4.68.
75. Australian Citizenship Council, Australian Citizenship for a New Century (Feb. 18, 2000), available at http://www.citizenship.gov.au/law-and- policy/legislation/report.htm.
76. Id. at 40.
77. Section 23D of the Australian Citizenship Act, 1948.
78. AUSTRALIAN CITIZENSHIP ... A COMMON BOND: GOVERNMENT RESPONSE TO THE REPORT OF THE AUSTRALIAN CITIZENSHIP COUNCIL 16 (2001).
79. Guy Mundlak, Litigating Citizenship Beyond the Law of Return, in TRANSNATIONAL MIGRATION TO ISRAEL IN GLOBAL COMPARATIVE CONTEXT 69, 78 (Sarah Willen ed., forthcoming 2007).