20 November 2003

We are Australian

Aren't all children born in Australia, 'Australian'? Not necessarily.

This used to be the case. Until 1986 every child born in this country automatically became an Australian citizen at birth%u2014no matter who the parents were. Only children of foreign diplomats and 'enemy aliens' did not become Australian citizens.

The High Court is shortly to hear the case of Plaintiff S441/2003, in which a five year old girl born in Sydney will challenge 1986 laws that restricted the automatic right to citzenship at birth. The girl's parents fled anti-Sikh persecution in India in 1997. She 'speaks with an Australian accent and thinks Brett Lee is the best cricketer in the world'.(1) But if her parents are denied refugee status they will be deported. And as a 'non-citizen', their daughter - despite her birth in Australia - will also have to leave.

Plaintiff S441/2003 involves fundamental issues about Australian identity that the High Court has never had to confront before. Most important is whether there is an Australian 'nationality' protected by the Constitution - separate from 'citizenship' under the Australian Citizenship Act 1948 - which confers rights and freedoms that Parliament cannot touch.

The Citizenship Act was amended in 1986 to remove automatic citizenship at birth from children of 'illegal' immigrants and temporary visa holders, including visitors and refugees. Now such children only become citizens if they are 'ordinarily resident' in Australia for the first ten years of their lives.(2)

The High Court has been asked to declare the 1986 amendment unconstitutional. The outcome is not straightforward.

At the time of the 1986 amendment, there was anxiety in the media about the number of illegal immigrants in Australia.(3) There was also concern about 'contemptible queue jumping' by parents who used the citizenship status of their Australian-born infants to gain permanent residency and avoid deportation. (4)

Excision seems to be the order of the day. Troublesome kids? Excise them! Troublesome islands? Excise them! The 1986 amendment passed under the Hawke government seems like a PR response to immigration anxieties rather than serious policy. How the High Court rules remains to be seen.

Apparently the decision will turn on what meaning of 'alien' to use. If we already have an implied bill of rights why not just go the whole hog and adopt one made by the people instead of implied by the court?

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