Should Australia reconsider dual citizenship? What history and the Constitution reveal about the Zygier affair.

The recent death in an Israeli prison of an Israeli-Australian citizen, Ben Zygier, has escalated into a multidimensional drama. Claims of spying and counter-spying, speculations about Zygier’s plans and their potential to damage Australian-Israeli relations, have multiplied. Allegations of anti-Semitic motives on the part of critics of Israel’s response face allegations of Israeli complicity in Zygier’s death.
In its latest iteration, the drama has moved beyond the particular, and reached into the policy of dual citizenship for Australians. More than one commentator has suggested that dual citizenship should be questioned and perhaps ruled out, in cases where the Australian citizen works for the secret service or even just the government of another country. Some have implied that dual citizenship as such should be reconsidered.
These are knee-jerk responses. Apart from their impracticality, they overlook a long and cautionary history surrounding citizenship laws. It was not until well after the Second World War that dual nationality was accepted by the international community, and then, in many countries, only reluctantly, and in some still not at all. Before then, embarrassments in diplomatic relations, the threat of divided allegiance in wartime, and the principle of single family citizenship were regularly advanced as reasons against permitting what was then called ‘double nationality’. This policy produced many hardships for individuals. Persons who had acquired citizenship by the accident of birth in a country that practiced the jus soli rule (for example, Britain and its Dominions until relatively recently, and the United States, still, as guaranteed by the Fourteenth Amendment) found themselves unable to acquire the citizenship of the country in which they lived, and, as aliens, were consequently denied the rights and security of abode that come with citizenship. Refugees, driven by crisis or persecution, were unable to take the citizenship of their country of refuge or were forced to abandon their former citizenship and therefore, in many cases, their right eventually to return home.
Under the laws of virtually every country in the world (including Australia and, notwithstanding its apparent constitutional guarantee, the United States), between the mid-nineteen century and the mid-twentieth century, women who married foreign men were automatically stripped of their citizenship, in part because it was assumed that they would acquire their husband’s citizenship, and dual nationality was not permitted. Where new citizenship was not acquired, the women were rendered stateless – one of the most pitiable experiences a human being can suffer. Countless other hardships were produced, for example, for women who were deserted by their husband, who, even in their own country, could not regain their former citizenship and, thus, were condemned to live as aliens. The decades-long campaign against these laws was finally successful, with the UN Convention on the Nationality of Married Women in 1958, but its success depended in significant part on the willingness of countries to accept dual nationality.
We recognise, today, that dual nationality is a matter of considerable convenience in the lives of those many who live and work in more than one country, that it facilitates commerce and is an core aspect of globalisation. We also need to remember that the denial of dual citizenship would have commensurable negative consequences, and would create problems going well beyond the scale of anything at issue in the Zygier case.
The constitutional framework needs to be understood. Australian citizenship is not guaranteed or defined under the Constitution, but the Commonwealth parliament has the power, under the ‘Naturalization and aliens’ provision (section 51 (xxix) ) to pass laws with respect to the acquisition of citizenship and governing the conditions on which it can be held. Australia did not permit dual nationality until 2002 (much later than most ‘western’ countries). Before then, an Australian who was naturalized in another country (or who automatically acquired a foreign citizenship, for example, by marriage) lost their Australian citizenship. Those who acquired Australian citizenship by naturalization were, however, able to hold more than one. While the Australian naturalization oath for a time required ‘new Australians’ to renounce their former nationality, it had no such legal effect. Australia could not control whether the laws of other countries did or did not permit their citizens to hold another nationality. The naturalization oath today requires a pledge of loyalty to ‘Australia and its people’; that loyalty does not have to be exclusive, nor can Australia, in practice, require it to be.
Those who are currently suggesting that Australia should reconsider its approval of dual citizenship overlook the fact that it can be acquired by naturalization, as well as by birth and parentage. It would be a dramatic, and internationally-questionable step to offer naturalization only to those immigrants who had, prior to the ceremony, legally renounced their former citizenship, rendering themselves, for a time at least, stateless. It would also be irrational to deny dual nationality to Australians by birth or parentage for fear of hostile allegiances, but not to those who acquired Australian nationality by naturalization. No one, surely, is arguing that naturalization should be prohibited.
The Constitution does include a provision in which issues of dual nationality and allegiance are addressed. Section 44 (i) disentitles a person who is ‘under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen … of a foreign power’ from standing as a candidate for either House of federal Parliament. The High Court held in Sykes v Cleary in 1992, that this extended to dual citizens and had the purpose, in the words of Justice Deane, of ‘prevent[ing] persons with foreign loyalties or obligations from being members of the Australian Parliament.’ The 1890s Federal Convention debates reveal that the concern of the framers of the Constitution was primarily with the possibility that Members of Parliament might, during wartime, hold loyalties to an enemy state. The High Court concluded that dual citizens wishing to stand for Parliament needed to take every available step to divest themselves of their non-Australian citizenship.
This may be hard on individuals who stand but are not successful, and who find themselves, thereafter, deprived of the second (or more) citizenship they once held. But, it is limited and proportionate, and serves a clearly-defined purpose. Whatever the hardship, it can be assumed that the prospect of a seat in Parliament has been weighed against the loss of citizenship status. But, in no case, does the Constitution force an individual to renounce his or her citizenship for other reasons. Nor does it require or even assume a policy of single Australian nationality or a demonstration of exclusive allegiance. This, too, should be remembered by those who are currently over-excited by the citizenship implications of the Zygier affair.

Author Helen IrvingPosted on February 26, 2013