What do aliens, allegiance to Australia and 1984 have in common? Surprisingly, not George Orwell’s spookily accurate prediction of life under the Abbott Government in 2015; albeit 30 years later than anticipated. The plot of Orwell’s novel, Nineteen Eighty-four, is scarily similar to the current political regime; an authoritarian government controlled by the privileged and elite, a climate of perpetual war, mass surveillance, public manipulation through media control, and the persecution of dissenters. While there are no aliens in Orwell’s fictional masterpiece, aliens are certainly relevant to Abbott’s utopian concept of Team Australia in an increasingly dystopian nation. And crucial to the notion of allegiance to Australia.
Abbott is obsessed with national security. He has strengthened anti-terror laws, passed legislation to mandate data retention, enacted draconian measures to deter refugees seeking asylum in Australia, threatened jail for doctors and teachers and nurses speaking out about abuse in detention centres, and undermined the independence of the national broadcaster.
Most recently he has proposed stripping dual nationals (and sole nationals if Abbott has his way), of citizenship. This builds on the existing and fervently applied law used to deport non-citizens who do not pass a so-called ‘character test’. According to existing law from the leading case of Shaw v MIMA , the Government has free reign to deport non-citizens, even if a person has spent decades living in the country.
There is no doubt that the Parliament can enact laws for the purpose of national security and take steps to protect Australia’s borders. The Constitution in section 51 gives the Federal Government powers to enact laws ‘for the peace, order and good government of the Commonwealth’ in areas such as naval and military defence, naturalisation and aliens, immigration and emigration, the influx of criminals and external affairs.
While Abbot’s dual citizenship plan and concept of Allegiance to Australia is arguably unconstitutional, how does it relate to the deportation of permanent residents, which at the moment appears to be perfectly lawful?
It comes down to the concept of aliens.
In the ordinary sense, an alien is a person of a foreign country. And the Government, according to the Constitution, has the powers to make laws on aliens. The long title of the Migration Act 1958 states that it is: ‘An Act relating to the entry into, and presence in, Australia of aliens, and the departure or deportation from Australia of aliens and certain other persons’.
The power for the Minister to cancel the visa of an Australian resident is found in section 501 of the Migration Act. Visas can be cancelled for a range of reasons, including failure to pass strict ‘character tests’, being a threat to national security, or where a person has a substantial criminal record. In some cases there is no right to natural justice, and no right to see any of the evidence on which the Minister based his decision.
In the past year alone, the Minister has cancelled over 600 visas. Many of the people deported or facing deportation are classed as British subjects, are eligible to vote and have lived in Australia since childhood. This is significant.
But what of aliens?
While Australians have referred to themselves as such for the best part of a century, up until 1973 they swore allegiance to the Queen of the United Kingdom, and they had the status of British subjects until 1987. In fact, in the 1971 census, 12,033286 of 12,755638 Australians reported that they were British. There was no option to report as an Australian Citizen despite the Nationality and Citizenship Act creating the concept of the Australian citizen in 1948. As late as 1967, Australian passports still bore the words, ‘British Passport’. It wasn’t until changes to the Citizenship Act in 1969 that Australians became citizens first and British subjects second.
In 1973, the title of Queen of Australia was created by statute, replacing the Queen of the United Kingdom for the purposes of allegiance.
The question must be asked:
Did Australians, born as British subjects and under allegiance to the Queen of the United Kingdom, individually and formally swear allegiance to the new Queen of Australia in 1973? Did all those Australians, born in Australia before 1973 renounce their allegiance to the Queen of the United Kingdom? Of course not.
In 1973, the residents of Australia, whether or not born on Australian soil, became subjects of the Queen of Australia, by way of being resident in Australia at that time. They still remained British subjects.
And until 1987, an alien was defined as a person who did not have the status of British subject.
This is where it gets confusing.
The Migration Act, while purporting in the long title to be about aliens, now refers to non-citizens rather than aliens.
And just like that, with the change of a couple of words in a statute, British subjects who were not naturalised, but who until that time had been lawfully living, working, voting and participating in public life in Australia, become subject to the Migration Act, were classed as statutory aliens and liable for deportation.
The Australian Constitution does not mention citizens. It refers to people of the Commonwealth, and people and residents of the States. The Members of the House of Representative and Senators are elected by the people of the Commonwealth and the people of the States who are eligible to vote. The Constitution also states in section 41, that where a person has the right to vote, they cannot be prevented from voting. Before 1973, the status of Australian residents was clear. They were British subjects. Citizenship was irrelevant to their capacity to participate in public life. And the status of Australians after 1987 is also clear. Australians must now be citizens to participate in public life and have security of domicile. Before 1987, but after 1948, those born in Australia were both Australian citizens and British subjects. However something has clearly gone wrong for non-naturalised British subjects who became subjects of the Queen of Australia in 1973, and are for all other purposes Australian.
But why is 1984 relevant?
The Government has previously recognised the unique status of non-naturalised British subjects in Australia. Those who were not citizens, but were on the Commonwealth electoral roll on 25 January 1984, retained the right to vote and participate in both state and federal elections. Not only did they have the right to vote, they were legally obliged to.
So the question must be asked:
How is it that a person, previously afforded full rights, protections and responsibilities by their status as a British subject, lose those same rights on the whim of a Government who has changed the statutory definition of who is entitled to remain in Australia?
How can a British subject who migrated to Australia before 1973, when all Australian’s were classed as British subjects and under allegiance to the Queen of the United Kingdom, and who became a subject of the Queen of Australia in 1973 by way of residence, suddenly become classed as an alien?
At what point, did a British subject, not only permanently residing in Australia, but eligible to vote and elect the Members of the House of Representatives and the Senate, become considered an alien?
At what point did a Government Minister, elected by the votes of the people of the Commonwealth including those British subjects eligible to vote, gain the power to deport those same people who by fulfilling their legal obligation to vote, helped elect said Minister?
At what point, did the same British subject, eligible to vote in a referendum – the mechanism by which the Constitution may be changed, lose the right to permanently live in Australia and be liable for deportation?
Can the Government even change the constitutional meaning of an alien, to make unlawful a person previously lawful, without a referendum?
It does not make sense that a person should be legally obliged to vote in a referendum, when the desired outcome is to enable the mechanism to deport that same person. It would be akin to signing their own deportation orders.
And in the same way, it does not make sense that the Government can change the status of Australians, so that those Australians, albeit not naturalised, lose the rights to domicile and vote, when that Government was elected by and to represent those same people now at risk of deportation.
In 1993, the Federal Government created an invisible type of visa for every person permanently resident in Australian but not naturalised. It did not matter if this person arrived before 1973, or if they were eligible to vote or stand for public office. Each and every one of these people was issued with an invisible visa. It is this invisible visa, created by statute and applying retrospectively, that the Minister is cancelling in accordance with section 501 of the Migration Act. And this means that of any one of the 162,928 British subjects on the Australian electoral roll in 2008 could be deported.
The ramifications of the proposed Allegiance to Australia Bill emerge. If the Government can change lawful residents into aliens by virtue of legislation – lawful residents who had the same rights and legal status as citizens, can it change the status of Australian citizens and turn them into aliens too? Could a person, born in Australia and having lived in Australia all their life, suddenly be declared an alien and deported, on the whim of the reigning Government? Could legislation be enacted and apply retrospectively, depriving an Australian of the only home they have ever known?
The concept of the Australian Citizen is found in legislation. It did not exist before 1948. And somewhere between 1973, when all Australians were classed as British subjects, and 1987, when the Australia Act came into effect, those British subjects who were not born in Australia lost the protection and certainty of domicile.
A team of Tasmanian lawyers are challenging the notion of what it means to be an alien. Led by Barristers, Mr Greg Melick SC and Mr Ray Broomhall, an application has just been filed in the High Court of Australia to argue that the Migration Act 1958 does not apply to a British subject, resident in Australia before 1973 and enrolled to vote in 1984. The Applicant, Mr Cayzer, is challenging his deportation on the basis that the Minister cannot cancel the visa of a person who until recently, had exactly the same rights and responsibilities of an Australian citizen. Mr Cazyer asserts that the Minister simply cannot redefine what it means to be an alien by legislation then retrospectively apply that definition to people who have always called Australia home.
In the leading case of Shaw, Mr Shaw, a British subject, arrived in Australia after 1973, so did not have allegiance to the Queen of Australia. He was not eligible to vote. Mr Cayzer’s case can be distinguished from this by the fact he actively and lawfully participated in public life in Australia. Mr Cayzer was a British subject who arrived in Australia in 1965. He has voted as a person of the Commonwealth to elect representatives in the federal parliament. And those representatives are now seeking to strip him of his right of domicile and right to vote.
The High Court has never before been asked to differentiate between a non-citizen resident in Australia before 1973 and who has the right to vote, and one who arrived after that time. While Mr Shaw was found to be an alien for the purposes of the Migration Act, Mr Cayzer alleges he became a subject of Australia in 1973.
There is no guarantee that the High Court will accept the application and answer the questions. But if it does, it will be an important case. It will redefine what it means to be Australian.
And it will have serious implications for Abbott’s concept of allegiance to Australia.