Where a person is no longer loyal to Australia and its people, and engages in acts that harm Australians or Australian interests, or engages in acts that are intending to harm Australian or Australia’s interest, they have severed that bond and repudiated their allegiance to Australia. – Australian Citizenship Amendment (Allegiance to Australia) Bill 2015, Explanatory Memorandum.
A Roundtable Analysis of the Citizenship (Allegiance to Australia) Bill 2015, Sanmati Verma, Angela Mitropoulos and Anastasia Kanjere.
Sanmati Verma: On 25 June 2015, the Abbott government tabled the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 in the House of Representatives. The text of the Bill is brief and its impact is singular – to reduce the concept of Australian citizenship to a revocable and provisional status, for anyone with foreign citizenship (or the inchoate right to acquire it). The Bill proposes to introduce three new provisions to the Australian Citizenship Act 2007 that allow for foreign citizen (or could-be foreign citizen) to lose their Australian citizenship, being:
Section 33AA – A person renounces their Australian citizenship if the person ‘acts inconsistently with their allegiance to Australia’ by engaging in specified ‘terrorist-related conduct’;
Section 35 – A person ceases to be an Australian citizen if the person fights for, or ‘is in the service of,’ a declared terrorist organisation;
Section 35A – A person ceases to be an Australian citizen if the person is convicted of a specified terrorism offence.
The ‘renunciation’ or ‘cessation’ of Australian citizenship by the above provisions is said to happen ‘by operation of law.’ That is, the renunciation or cessation takes place when the prohibited conduct occurs, rather than as a consequence of a specific decision by the Minister for Immigration. The Minister must “notify” of the renunciation or cessation, but in doing so s/he is only recognising a pre-existing “fact” which has already taken place because of the person’s prohibited conduct.
The Bill does not specify who will determine when ‘terrorist related conduct’ or acts ‘in service of a declared terrorist organisation’ will take place. It does, however, provide that the Minister may rely on information from ASIO which is lower, or more informal than the level of a ‘security clearance,’ in order to issue the notice that renunciation or cessation has taken place. So, again, who decides that the prohibited conduct has occurred? Is it ASIO, who routinely rely on advice from third parties, including the persecuting states that a person has fled in fear? Is it the Federal Police, when they commence sweeping investigations in Sydney’s Western Suburbs that subsequently fall apart? Or is it fear-ridden members of the Australian public, glancing around for the threat of beheading?
This Bill, if passed into law, will have the effect of creating a massive apparatus of social surveillance intended to capture those inchoate actions, thoughts, movements, discussions that could coalesce into the ‘renunciation’ or ‘cessation’ of Citizenship. In the imaginary of this Bill, citizenship is a status that inheres naturally in some bodies (Australian-born, white-settler nationals) and rests uneasily on top of others, waiting to be sheared off. The foreign body is reduced a series of inchoate acts of sabotage and treason, waiting to happen.
Angela Mitropoulos: While much of the debate prior to the Bill’s appearance, perhaps understandably, focused on the discretionary authority granted to the Minister, the bipartisan result is a remarkable, hideous attempt to retain most of the Act’s extra-judicial functioning while seeking to evacuate any accountable imprint of the performance of Ministerial decision. According to the Bill, citizenship is not exactly revoked so much as its cessation is ‘recognised’ to have already occurred through ‘conduct incompatible with the shared values of the Australian community.’ There are serious questions, as Sanmati suggests, about who determines that this “conduct incompatible with Aussie values” has occurred, such that it is capable of (seemingly) automatically triggering the revocation of citizenship.
In the detail, such conduct can be deemed to have occurred in the resolute absence of any conviction by any court. Its content can involve such broadly-defined acts as the destruction of Commonwealth property or a range of offenses that are already the subject of criminal sanction. But revocation of citizenship is not triggered by the nature of the conduct so much as its recognition (or definition) as conduct that transgresses ‘the shared values of the Australian community’ is reliant upon the legal, filial classification to which persons belong. In this sense, the criterion of conduct is perhaps less about the act than that this conduct can be subject to exceptional consequences depending on one’s affiliations.
“Dual citizenship” is a curious but telling index given that, prior to 1973, Australian citizens were also defined as British subjects and, until very recently, the only dual affiliation that was not considered to be exclusive of Australian citizenship was affiliation to Britain. The strength of this affiliation has clearly waned, given the response to Prince Phillip’s knighting by the Prime Minister. Yet a normative invisibility and supremacy continues to be granted to the multiplicity of affections and loyalties of Anglo-Australians in this country, including the affiliations of the English migrant who presently serves as the Prime Minister.
When citizenship can be revoked because it is deemed that someone has acted ‘in the service of a declared terrorist organisation,’ despite the pretense of an automatic triggering, what it means to act ‘in the service of’ is a matter of interpretation. The Courier-Mail’s photo-shopping of the ABC’s logo on an ISIS flag and convoy suggests a delirious but selective ambit. Still, and despite the strained language of the Bill, it is the Minister who is ultimately granted interpretive powers and therefore judgement, and whom the Bill explicitly exempts from having to exercise natural justice (and rule against bias) in so doing. In some instances, the Bill represents that interpretative processing as if it were merely the result of registering the affective inputs from a distributed Border Force network routed through twitchy curtains. But the technique that underpins this McCarthyist search for UnAustralian Activities more closely resembles the views of the National Socialist jurist Carl Schmitt, who worried that the myth of an indivisible, culturally-homogenous sovereignty would collapse along with the fraying of what he saw as its constitutive border between friend-enemy. Hence the Prime Minister’s demanding to know from the ABC, and indeed the rest of us: “Whose side are you on?”
Anastasia Kanjere: One function we can see this Bill as serving to fulfill is to further racialise notions of threat. The terrorist threat, the threat of acting as a terrorist or in service of terrorism is only punishable in this way for people whose claim to normative status is already under question. Thus the crime of non-allegiance, of being inconsistently allegiant, is only sufficient to threaten the citizenship of those for whom citizenship is already (always already) contingent. Acts that are inconsistent with allegiance are not punishable for those in whom citizenship naturally inheres, as Sanmati writes, for Australian-born, white-settler nationals. For those, (for us), a more diverse range of engagements with nation, nationhood and citizenship might be allowable: our dissent or non-compliance does not render us precarious. This is manifest in the very wording of the name of this legislation: in the Citizenship (Allegiance to Australia) Bill, our allegiance is not demanded; it is instead us who form the ‘Australia’ to which allegiance is extracted.
We might also examine the ways in which this government has realised a rhetorical shift in the last few weeks, where ‘dual citizenship’ becomes immediately ‘suspect citizenship’. The notion that citizens of this particular nation state might have the security of their citizenship rendered inherently unstable through dual (or even the prospect of dual) citizenship is both alarming and outlandish – it is certainly without legal precedent. And yet this shift appears to have been achieved very skilfully, so that no less than a radical redefining of the very notion of citizenship has been pulled off in the space of a few weeks. The imaginings that the Bill provokes that Sanmati describes are not just two different kinds of bodies (one implicitly treasonous, another inherently naturalised) but two kinds of citizenship (one uneasy and vulnerable, another immanent and inalienable). The potential ‘renunciation’ or ‘cessation’ of citizenship creates a new kind of citizenship: one that can be retrospectively read to have been renounced (by certain actions in certain bodies); one that can cease. (The possible threat implicit in this to Aboriginal activists who are increasingly exploring possibilities of sovereign nationalism is not negligible and almost certainly not incidental). The use of mere possibilities of dual citizenship in order to render status suspect indicates a radical re-imaging of national borders as being retrospectively re-enactable: the white nation’s clanging shut of borders already permeated. In its legislative expulsion of the interior, in its hallucinatory qualities, in its ultimate menace; this bill is reminiscent of the 2013 excision of the mainland from the migration zone. Welcome to the excised offshore place: performances of allegiance not optional.
Verma: After the appearance of Zaky Mallah on the ABC’s Q&A on Monday night, the media erupted in a week-long, facile discussion of “free speech.” The debate of the week has been whether the ABC was unwise to invite Mallah into the audience of Monday’s panel on ‘Terror, Poverty and Native Titles,’ or whether it was entitled to do so in the name of ‘free speech.’
By focusing on “free speech” in the abstract, in the sense of a self-espoused pillar of western democracy, the ensuing discussion has ignored the truly malevolent context of the Mallah episode. Zaky Mallah is a 31 year-old from a Lebanese background, born and raised in Sydney’s western suburb of Punchbowl. In 2003, at the age of 19, he became the first person charged under the Howard government’s anti-terrorism laws. He was initially charged with planning a terrorist act, in relation to a supposed plan to attack ASIO and other Commonwealth officials. On 8 May 2005, a New South Wales jury acquitted Mallah of the terrorism charges, partially on the basis that the evidence against him had been obtained through improper inducements and potentially illegal conduct on the part of the New South Wales Police.
Speaking three days before the formal tabling of the Citizenship Bill, Parliamentary Secretary for Foreign Affairs and Trade, Steve Ciobo, chillingly revealed the government’s intention for the new provisions in the following exchange with Mallah:
ZAKYM ALLAH: As the first man in Australia to be charged with terrorism under the harsh Liberal Howard Government in 2003, I was subject to solitary confinement, a 22 hour lock-down, dressed in most times in an orange overall and treated like a convicted terrorist while under the presumption of innocence. I had done and said some stupid things, including threatening to kidnap and kill but, in 2005, I was acquitted of those terrorism charges. Question to the panel: What would have happened if my case had been decided by the Minister himself and not the courts?
STEVE JONES: Steve Ciobo.
STEVE CIOBO: Sir, I’m not familiar with the circumstances of your case. I remember certainly seeing video of comments that the questioner asked but, from memory, I thought you were acquitted on a technicality rather than it being on the basis of a substantial finding of fact. I could be wrong but that’s my… […]
MALLAH: … I was charged with planning a terrorist attack in Sydney in 2003 and was acquitted by the Supreme Court jury in 2005 of those charges. However, as a plea bargain happened, I pleaded guilty to threatening to kill ASIO officials.
CIOBO: Well, I got to tell you, Tony, my understanding of your case was that you were acquitted because, at that point in time, the laws weren’t retrospective. But I’m happy to look you straight in the eye and say that I would be pleased to be part of a government that would say that you’re out of the country as far as I’m concerned.
This should have been the real story regarding Monday’s program: a senior Liberal parliamentary official made it clear that he and his government would be ‘happy’ if the new provisions of the Citizenship Act operated to cease the citizenship of someone acquitted of terrorism charges because of police impropriety. The systemic, egregious, potentially criminal conduct of the police officers involved was reduced by Ciobo to a “technical” defect in the investigation against Mallah, but could not offset his inherent, pre-ordained guilt.
The provisions of the Citizenship Bill mark a new moment in the naturalisation of colonial sovereignty within Australia. The provisions work to cast Australian citizenship as an inherent, natural birthright of some, whilst rendering is a probational and revocable status for anyone with “foreign” descendance. The Bill bodes towards a future, dreamed of by both sides of politics since the inception of official ‘multiculturalism,’ in which foreign nationals are kept in a perpetual period of probation, having to constantly re-enact their value for the settler-colonial state.
Mitropoulos: The fallout from Q&A is also indicative of a wider procedure, one that—as Ciobo’s, Gerard Henderson’s, the Prime Minister’s and others’ fudging of the facts of the case unraveled—turned to evidence of Mallah’s misogyny (a tweet), thus piling further demonstrable ironies on the matter of acquittals and “technicalities,” since a young Tony Abbott was once charged with indecent assault, and the charge was dismissed due to “enormous conflict” over evidence. On the one hand, it underlines all the senses in which women are routinely invoked as property within racialised conflicts (between men). There has of course been a growing debate in Australia about the very definition of terrorism as exclusive of domestic and gendered violence.
On the other hand, this (as well as the recent Inquiry into the events at the Lindt Cafe) points to the immediate function of the Citizenship Bill: that those whose citizenship is revoked will not face trial, and therefore the facts will not fully emerge. Claims will not be subject to rules of evidence, proofs or verification. People underestimate the theological sources for the current Government’s, shall we say, lack of faith in judicial reasoning, empirical evidence and, not least, judgement. But in an immediate sense the absence of a trial mitigates the risk to the Government that facts will emerge to disrupt simple narratives and hyperbolic polemical claims. The Inquiry into the events at the Lindt Cafe was all but shut down as questions turned to why Monis’ letter to the Attorney-General did not raise any alarms. Revealing the actions of certain agencies who may have engaged in entrapment, inducements or any other type of manipulation—as the Q&A program veered toward doing—would be a disaster for an agenda that seeks to racialise politics through the vector of national security. It would, in other words, indicate that the object is not safety, but the promotion and fueling of insecurity, for which there are both political and economic pay-offs.
Yet it would be wide of the mark to argue, as some have done, that this is reducible to a campaign of fear and distraction. These arguments fail to explain why racialised panics can precipitate fear and serve as a distraction, and it treats racism as an instrument of politics rather than as the initial presumption of the boundaries of political representation.
The Citizenship (Allegiance to Australia) Bill transforms citizenship into a contract founded on a mythical “bond,” that is deemed to have been breached by ostensibly unAustralian conduct—and in this sense its additional purpose is to extend the Code of Conduct from particular classes of asylum seeker visas to those (non-Anglo-Australians) who were born in Australia or who did not arrive by boat. That Code of Conduct includes provision for being sent to a detention camp on Manus or elsewhere for spitting, being “disruptive,” or “anti-social” and disturbing the neighbours.  The Bill does not tell us what will happen to people whose citizenship has been stripped if they are presently in Australia, but one assumes that they will then be detained (without charge) and deported (if possible) or be detained indefinitely where that is not. That is, the Citizenship (Allegiance to Australia) Bill also marks a dramatic and surreptitious expansion of the scope of Mandatory Detention.
1. See R v Mallah  NSWSC 358 (11 February 2005).
2. See ABC, ‘Q&A – Programs – Terror, Poverty & Native Title,’ 22 June 2015 available http://www.abc.net.au/tv/qanda/txt/s4242255.htm accessed 27 June 2015.