Jupp, James --- "Twilight of the Empire: Britain as a Foreign Power" [1999] ALRCRefJl 21; (1999) 75 Australian Law Reform Commission Reform Journal 15

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Reform Issue 75 Spring 1999

This article appeared on pages 15 – 18 & 69 of the original journal.

Twilight of the Empire: Britain as a Foreign Power

By Dr James Jupp*

Current campaigning around a republic draws attention to various anomalies surviving from the ambivalent status of Australia as an independent state over the past century.

Australia is nominally headed by an overseas monarch, belongs to the British Commonwealth, did not have its own citizenship until 1949 and allows British subjects to vote if they arrived by 1983 whether they are Australian citizens or not. Some prominent citizens expressed annoyance, even amazement, when the High Court recently declared Britain to be ‘a foreign power’. Such surprise would be very unusual anywhere else in the world except for New Zealand. Canadians publicly display the Queen’s picture to show that they are not Americans, not that they are British. Indeed, they changed their flag and national anthem precisely to show that they were not British.

Britain as a foreign power

Until 1949 Australians were British subjects. This status gave them the right to enter and reside in the United Kingdom and in other self-governing states of the British Commonwealth. This right was not reciprocally extended by Australia. By the 1901 Immigration Restriction Act, Australia reserved the right to exclude any undesirable person for any reason. Normally this was taken to apply to non-Europeans, whether British subjects or not. This was modified for Maoris and the Indian relatives of those already resident and did not apply to the small minority of Chinese or others of Asian origin who had secured British citizenship in Australia before 1901. Unlike United Kingdom immigration law, which has always been based on legal nationality, Australian practice was based on race or personal undesirability. This was grudgingly accepted by the UK government as applying to British imperial subjects. Even today, Australians legally resident in Britain and duly registered can vote and sit in parliament, as can other citizens of British Commonwealth countries. They must, however, line up with ‘aliens’ at Heathrow airport, while European Union citizens pass more quickly through the lines along with UK citizens of whatever colour. Since the Commonwealth Immigration Acts of 1962 and 1968, Australians no longer have a right to reside or work in the United Kingdom without being subject to immigration control. As this control is stricter than its Australian equivalent, it is theoretically easier for a United Kingdom citizen to become a permanent settler in Australia than for an Australian to secure this status in Britain. However, thousands of Australians continue to live and work in Britain. At the 1998 elections, more than 20,000 Australians voted at Australia House in London, by far the highest number at any overseas polling place and twice as many as for the next post, interestingly enough in Hong Kong.

As far as permanent immigration goes, Britain is a foreign power for Australians and Australia for Britons. While the Irish have always been free to enter Britain (subject to security and criminal checks in theory), this right is now extended to all citizens of the European Union (subject to some ‘national interest’ considerations).

Australia, in contrast, only allows free entry to New Zealanders, who are now the largest source of immigrants. It never allowed free entry to its former subjects in Papua and New Guinea, nor did it allow Aborigines to exercise the same right to leave Australia as was enjoyed by others. Between 1901 and 1949 it maintained four distinct classes in practice, though not in law: white British subjects; European aliens; non-Europeans; and Aborigines. This was a fundamentally different approach from that of Britain, which until 1962 divided the world into British subjects (regardless of origin) and aliens (also regardless of origin).

Now Britain distinguishes between those with a ‘right of abode’ (who may or may not be British subjects) and those without (some of whom ‘enjoy’ the dubious status of being British subjects while not allowed to settle in the United Kingdom). Australia now distinguishes only between citizens and non-citizens, with immigration concessions only for New Zealanders. Neither country has an overtly racist immigration or citizenship policy. Both countries have redefined citizenship to meet changed circumstances since the Australian Act of 1901 and the United Kingdom Aliens Act of 1905. Until little more than 30 years ago Britain was not a foreign power to Australians. Today it is.

Dual citizenship

All Australians were British subjects until 50 years ago. White British subjects were virtually free to enter and remain in Australia and well over a million were actually paid to do so by the Australian taxpayer between 1947 and 1982. It is from this large group of assisted United Kingdom settlers that the largest number of those unwilling to become Australian citizens is drawn. Until the 1980s there was little reason to become an Australian citizen as most entitlements of citizenship were also available to the British. Changes in immigration procedures were the main incentive, including the need to obtain a re-entry permit, the denial of the vote to those arriving after 1983, and limitation of public sector employment to citizens or intending citizens. But by the 1980s British immigration had dropped off, never to recover, partly because of the ending of assisted passages by the Fraser government. New Zealand immigration continued to rise but there was even less reason for them to become Australians, as they were not restricted by the immigration system and many did not intend to remain permanently in Australia.

The declared aim of Australian immigration policy is to create permanent residents who become citizens. To this end, citizenship has been made easier to acquire than in most other major states. But the irony is that the two largest intakes, from Britain and New Zealand, are amongst those least likely to become citizens. The most assimilable are the most reluctant. This amazes American social scientists who have always taken citizenship as a measure of assimilation.

Australians born in the United Kingdom, who numbered 1,069,896 at the 1996 Census, are either dual citizens or non-citizens. This distinguishes them from those born in Australia of legally resident parents. Australian-born citizens may not become citizens of another state without losing the Australian citizenship acquired by birth. But many are still eligible de facto, for the rights, privileges and duties available to others. Children of UK-born fathers are entitled to a British passport, which is now also a European Union passport. Children of Greek parents are still regarded as Greeks by the Greek government. Even the grandchildren of Irish-born parents may be eligible for an Irish passport ‘if they intend to reside in Ireland’. British, Greek and Irish passport holders are free to enter and reside in 15 different European states, as are the other citizens of these states. The combined Australian population born in the European Union was 1,780,242 in 1996. While not all their children are entitled to passport privileges, most are.

Dual citizenship or passport entitlement is now very common. Even the United States now allows it and Britain has always done so. It applies to at least one Australian in four, most of whom have to vote and are Australian citizens. As Australia cannot determine the laws of other states, this situation will doubtless continue. There is little likelihood that the right to dual entitlement will be taken away from voters, as some nationalist enthusiasts seem to want. Even the anomaly of several hundred thousand non-citizen British voters being electorally enfranchised is unlikely to change, although the numbers are quite influential in elections in Western Australia and South Australia. Essentially dual citizenship is not a problem in times of peace, although it is often presented as one. The only problem is for those returning to their homelands who are regarded as citizens by their previous governments. This is much less significant with the collapse of the Communist systems although it is still a problem for young men liable for conscription. There are few rational arguments for denying dual citizenship to the Australian-born as it is enjoyed already by about two million naturalised citizens. The main obstacle to changing an anomalous law is the mistaken belief that loyalty and assimilation can be measured by citizenship and can only be limited to one state. Dual citizenship is appropriate to an immigrant society in a globalising world. Exclusive citizenship is not.

Section 44(i)

The trigger for officially acknowledging the reality of Britain’s foreign status was the appeal against the election of Heather Hill of One Nation to the Senate for Queens-land. One Nation gained one million Senate votes in 1998 and the challenge was not to its right to be represented, but rather to the status of its favoured candidate. Section 44(i) of the Constitution denies the right to sit in the Commonwealth parliament to anyone who “is under any acknowledgement of allegiance, obedience or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a citizen of a foreign power”. In 1901, of course, this referred to those who were not British subjects. There was no problem for British subjects and Watson, Fisher, Hughes and Cook all served as prime ministers in the first two decades after Federation. Not coincidentally, all were or had been members of the ALP, which had a large immigrant component in its early ranks, even while it espoused Australian nationalism and White Australia. Since the First World War there has been a decline in British and Irish immigrant membership of parliament. But still the largest number of federal MPs and Senators from overseas are British.

Clearly the intent of the Constitution drafters was to distinguish between Britons and aliens. British subjects were free to sit in the House of Commons and several still do without the need to become United Kingdom citizens. The issue lay dormant for 50 years.

In the meantime Australia had acquired its own citizenship, Britain had started to exclude Commonwealth citizens as immigrants, the welfare state had extended the ‘rights and privileges’ of United Kingdom citizens, including the right to a pension while living overseas. Nearly one-quarter of Australian adults were born overseas, about the same as in 1901 but of quite different origins. Parliamentarians and candidates of non-British origins were starting to appear, if in relatively small numbers. By the 1990s, s 44(i) was a small timebomb ticking away for the unwary. Of those actually elected only two have been disqualified (‘Senators-elect’ Robert Wood (1988) and Heather Hill (1999)). Both were born in the United Kingdom. Both were from small parties, which lacked the skill and knowledge to avoid the problem. Robert Wood had not even become a citizen, believing that as a permanent resident since childhood and with the vote, he was not required to do so. He was clearly in the wrong. Heather Hill’s case was much more typical, in that she had become a citizen but had not taken ‘reasonable steps’ to renounce her United Kingdom loyalty. Like many others, she doubtless felt that being a subject of the British Queen was the same as being a subject of the Australian Queen. The school room maxim that ‘the Crown is divisible but the Monarch is not’ puzzles more people than her.

All those entitled to dual citizenship are potentially at risk from s 44(i) if they run for office. While the initial case in this area¹ created the expectation of taking ‘reasonable steps’ to renounce other loyalties, there is still a problem inherent in the entitlement to such benefits as a passport or a pension. One Nation’s Heather Hill did not even claim to have renounced her United Kingdom citizenship and had only recently taken up Australian citizenship in any case. She contested rather on the grounds that Britain was not a foreign power, which was quite rightly rejected. In my submission to the House of Representatives Standing Committee on Legal and Constitutional Affairs (reference section 44(i) and (iv) of the Australian Constitution) on May 12, 1997, I stated unequivocally that “the United Kingdom is a foreign power, just in the same sense as any other country”.² I drew attention to several problems: dual citizenship for immigrants; dual citizenship for the children of immigrants born in Australia; the jus sanguinis under which states like Israel, Japan or Germany extended entitlements to those of ancestral descent elsewhere; and passport and pension entitlements.

The basic problem with s 44(i) is that it is in the Constitution, was put there in quite different circumstances from today’s and cannot be removed without a referendum. The obvious solution, which all enquiries have endorsed, is that the wording should be changed to exclude ‘any person who is not an Australian citizen’. The problem of change is entirely political and arises from the lingering belief that dual citizens are ‘disloyal’. Perhaps if it was pointed out more frequently that most dual citizens are British subjects, as are most affected parliamentarians, this antagonism would be diminished. Perhaps not. One submission to the House inquiry wanted the prohibition of everyone born overseas!

No government has thought it important enough to test the referendum process. While the courts may develop a sense of what is a ‘reasonable’ renunciation, the only alternative likely to close the issue would be a clear statement in the Commonwealth Electoral Act 1918 of what constitutes renunciation for the purposes of s 44(i). No government has tackled that one either. It becomes more urgent as more candidates are chosen from the quarter of Australian adults who were born elsewhere.

Will a republic make a difference?

For a variety of reasons there is some public confusion about the impact of becoming a republic on the British connection. Most frequently, it has been argued that Australia might have to leave the Commonwealth and apply for readmission. This is quite untrue as anyone who looks at Commonwealth history since India became a republic in 1951 would know. Taking an oath to the British monarch was a fighting issue in 1921, leading to the Irish civil war and eventually to an Irish republic, which left the Commonwealth and has never returned, despite the recent overtures by British Prime Minister Tony Blair. The only other states to leave the Commonwealth have been Burma, Pakistan and South Africa - all republics. Two have now returned. Fiji and Nigeria were suspended. The reasons were different in all cases. Burma chose to leave largely because it misunderstood what was involved in remaining in the Commonwealth. Pakistan left because it would not accept the admission of Bangladesh. South Africa was expelled over apartheid. Fiji and Nigeria were obliged to return to democracy. None of this had anything to do with being a republic. All members of the Commonwealth accept the Queen as head of that organisation, but only a minority accept her as their head of state.

Nor is it any longer true that Commonwealth membership depends on former imperial ties with Britain. In 1995 Mozambique, a former Portuguese colony, became a full member. Cameroon and Vanuatu, which had been jointly administered by Britain and France, are also members. To complicate matters, there are several monarchies, such as Malaysia, Brunei and Tonga, which have their own royalty but are also members of the Commonwealth.

A republic will make no difference to Commonwealth membership. It will make no difference to the remaining anomalies outlined above unless these are specifically changed. It will make no difference to the relationships with Britain, with other Commonwealth states or with the greatest of all English-speaking societies, the United States. It will not alter the links between various professions, universities and associations that operate within the Commonwealth orbit. It will not make the Commonwealth weaker or stronger. It will not make it easier or harder for citizens of Commonwealth countries to settle in Australia. It will not change the flag or the national anthem. It will not make Britain any more a foreign country than it has already been declared to be by the High Court. It will not reduce the affection that more than one million British immigrants feel for their homeland. It will not make them more or less likely to take out Australian citizenship. It will not affect the special immigration privileges extended to New Zealanders, nor restore those removed from the British by Australia in the early 1980s.

What it might do is to put the seal finally on the entrenched delusion, both in Britain and Australia, that their formal international relations are somehow different from those with other states. Even so, it will not bring to an end the reality that modern Australia was founded by the British, settled by the British and was culturally linked to the British for most of its history. That reality is changing and will change still more. But that will not be because of constitutional, political or legal changes. These are more likely to lag behind social and cultural change than to advance it. Two changes, which are fairly urgent, are to allow dual citizenship for Australian citizens by birth and to amend s 44(i) of the Constitution, to confine its application to non-citizens.

* Dr James Jupp is the Director of the Centre for Immigration and Multicultural Studies in the Research School of Social Sciences at the Australian National University, Canberra. He has published widely on immigration and multi-cultural affairs, and has acted as a consultant for the Office of Multicultural Affairs, the Department of Immigration and other public agencies.

Endnotes

1. Sykes v Cleary [1992] HCA 32; (1992) 107 ALR 577; (1992) 66 ALJR 577; Sykes v Cleary (No 2) [1992] HCA 60; (1992) 109 ALR 577; (1992) 67 AlJR 59; (1992) 176 CLR 77

2. (LGA 232).