FROM SUBJECT TO CITIZEN
FROM SUBJECT TO CITIZEN Australian Citizenship in the Twentieth Century
ALASTAIR DAVIDSON Department of Politics Monash University
Centre for Urban and Social Research Swinburne University of Technology
CAMBRIDGE
UNIVERSITY PRESS
CAMBRIDGE UNIVERSITY PRESS Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, Sao Paulo Cambridge University Press The Edinburgh Building, Cambridge CB2 2RU, UK Published in the United States of America by Cambridge University Press, New York www. c ambridge. org Information on this title: www.cambridge.org/9780521453677 © Cambridge University Press 1997 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 1997 A catalogue record for this publication is available from the British Library National Library ofAustralia Cataloguing in Publication data Davidson, Alastair. From subject to citizen: Australian citizenship in the twentieth century. Bibliography. Includes index. 1. Citizenship -Australia. 2. Civics, Australian. 3. Australia - Politics and government - 20th century. I. Title. 323.60994 Library of Congress Cataloguing in Publication data Davidson, Alastair, 1939From subject to citizen: Australian citizenship in the twentieth century / Alastair Davidson. p. cm. Includes bibliographical references and index. 1. Citizenship — Australia — History — 20th century. 2. Australia — Politics and government - 1901-1945. 3. Australia - Politics and government - 1945-1. Title. JQ4083.D38 1997 323.6'0994'0904-dc21 96-24270 ISBN-13 978-0-521-45367-7 hardback ISBN-10 0-521-45367-4 hardback ISBN-13 978-0-521-45973-0 paperback ISBN-10 0-521-45973-7 paperback Transferred to digital printing 2006
The old Lie: Dulce et decorum est Pro patria mori (It is sweet and fitting to die for one's country) Wilfred Owen
Contents
List of Figures
x
List of Tables
xi
Acknowledgments
xii
Abbreviations
xiii
Introduction
1
Part I: From Subject to Citizen 1901-1996
9
1
13
Civis Romanus Sum Nation and State Creating a National Identity Definition of Citizenship
2
From Subject to Citizen I: to 1948 The Commonwealth of Australia The Australian People Formal Requirements before 1948 Public Discourse about Citizen Rights: 1901-1948 Unofficial Discourse on Citizenship Civics for Schools
19 32 40 45 50 52 59 66 70 79
viii 3
CONTENTS Nationality and the Citizen II: 1948-1986 Official Policy Formal Requirements: 1948-1972 International Personality and Nationhood Unofficial Discourse on Citizenship Naturalisation Rates and Belonging Closures to Theory
4
From Subject to Citizen III: 1983-1996 Formal Requirements: 1983-1994 Official Discourse about Citizenship A Bill of Rights for Australia: 1973-1993 The Active Citizen Unofficial Discourse on Citizenship: 1983-1993 The New Nationalism
84 87 94 101 103 105 108
113 118 120 124 134 136 139
Part II: Discourses of Exclusion
143
5
149
6
Discourses of Exclusion, Silencing the Migrant Voice From Alien to Permanent Resident: 1945-1972 Aliens Aliens from Whitlam to Hawke Aliens and Permanent Residents: 1984-1995 From One Voice to Many: to Cacophony? The Citizenship Conventions: 1950-1970 The Migrant Voice Ethnic Spokesmen Social, Economic and Educational Rights Deep Culture and Racism
158 160 162 165 167 169 171 175 179 185
Aborigines and Citizenship: Discourses of Exclusion
188
The Colonial Period The Franchise Act (1902): The Right to Vote Land and Values The Problem of 'Belonging' The Discourse of Exclusion An Aboriginal Contribution to Citizenship
189 190 201 203 209 213
CONTENTS
ix
Part III: The Active Citizen and Beyond
217
7
223
The Active Citizen and Direct Democracy in Australia The Right to Vote The Popular Sovereign and Direct Democracy Local Government Direct Democracy Responsible Government The Inactive Citizen Overview
Conclusion Looking Backward Recrudescent Nationalism What Is So Special About Our Fellow Countrymen? Looking Forward to the Twenty-First Century Regionalism and the Regional Citizen The European Example New Acts of Citizenship Representative Democracy Australia Learns?
228 233 235 237 240 245 246 248 248 255 256 259 260 263 275 276 280
Notes
287
Select Bibliography
312
Index
331
Figures
1 2 3 4 5
Trends in the number of eligible non-citizens of Australia by birthplace South and East Asia - applications, visas issued and cases carried forward, by migration program component, 1983-84 to 1990-91 (year ended 30 June) South and East Asia - visas issued, by category, 1983-84, 1986-87, 1990-91, 1986-87 to 1990-91 The Gini index The Dauer-Kelsay index for Australian legislatures
155 156 159 234 235
Tables
1 2 3 4 5 6 7 8 9 10
Contexts of democracy Top ten countries (in order) of former citizenship or nationality of persons granted Australian citizenship, 1983-93 Citizenship rates (%) by year of arrival and birthplace (overseas-born only), pre 1971-91 Estimates of overseas-born Australian citizens and non-citizens eligible for Australian citizenship, 1991-94 Eligible non-citizens at June 1994 by selected country of birth Electoral enrolments for State and Territory lower houses of parliament Electoral enrolments for State upper houses of parliament Innovation in representational arrangements lower houses Constitutional referenda, 1901-88 Classification of South-east Asian countries on the human rights scale (1991)
5 90 107 154 154 237 237 243 250 283
A cknowledgments
This book has been seven years in the making. Many people have helped in a labour marked by many articles, changes of direction, and a feeling that the answers never keep up with the changes. If I do not thank all those who are in this book please forgive me. I have had great research assistants: Kathy Dempsey; Mark Lopez; Effi Tomaras; Lucas Walsh; Tan Nguyen; library specialists: Gayle Whyte and Grace Giannini; wordprocessing experts: Cecilia Thorei and Anne West. I have had postgraduates working on closely related matters: Nella Pasqua; Abby Howe; Matt Harvey. I have benefited from discussions and comments with Mike Salvaris; Michael Muetzelfeldt; Bryan Turner, Stephen Castles, Stuart Macintyre, Rob Watts, Marcelo Dascal, Stuart Woolf, Roger Spegele, Peter Beilharz, Anna Yeatman, Andrew Wells, Marilyn Lake, Jim Walter, James Warden, Donald Home, Charles Sampford, Beth Gaze, George Venturini, Anthony Mason, Tony Pagone, Sid Spindler, Wayne Hudson, Kathleen Weekley, Barney Cooney, Jane Connors, Brian Costar, Boris Frankel, Maryellen Davidson and Terry Burke. Thanks to Lee White for her editing work. Over these years I have been able to participate in the emergence of Citizenship studies in the Ideas for Australia project; the Social Benchmarks for Citizenship project at Swinburne University of Technology and the Centre for Citizenship and Human Rights at Deakin University. I owe much to discussion, dispute and disagreement with so many people. This book may all be wrong. I take every responsibility for what I have written, but it was really a product of debate with other 'active citizens'. If it ends in a memory hole it will have all been worth it because these people have sustained my flagging belief in civic virtue.
Abbreviations
ACC AEU AGPS ALAS ALJ ALJR CIS CLR CP CPD DFAT DIEA ECJR EAC EAEC ECSC EHRR EPAC ER NACC Nat NCP NSWLR OMA PARC VCL
Australian Citizenship Convention Australian Education Union Australian Government Publishing Service Australian Institute for Asian Studies Australian Law Journal Australian Law Journal Reports Centre for Independent Studies Commonwealth Law Reports Country Party Commonwealth Parliamentary Debates Department of Foreign Affairs and Trade Department of Immigration and Ethnic Affairs European Court of Justice Reports European Atomic Community European Atomic Energy Commission European Coal and Steel Community European Human Rights Reports Economic Planning and Advisory Council English Reports National Aboriginal Consultative Council National Party National Country Party New South Wales Law Reports Office of Multicultural Affairs Public Affairs Research Centre Victorian Council for Civil Liberties
Introduction
This is a book about what it has meant, and what it means to be, a citizen of Australia. When I was doing research into what may seem a dryas-dust subject, of interest only to lawyers and students of politics, I was constantly reminded how much citizenship is really a central concern for human beings bent on being happy and seeking justice. This is why they have fought and died here and elsewhere for the rights of citizenship. I was also reminded that it is only part of life and usually understood not as a goal in itself, or intrinsically virtuous, but as an activity and status directed towards other more private human realms where human conviviality and friendship are the goal. At one of the Conventions on Citizenship which were held in Australia from the 1950s onwards, a delegate from the Good Neighbour Council - in the blunt tones of a now almost forgotten commonsense of the man on the land - reminded other delegates that what a new immigrant really wanted was a warm human welcome and not a diet of citizen education.1 This book is thus written in full awareness that a discussion of citizenship - a realm of political activity with particular rules - presumes a wider context of the social. While it must concentrate on those procedures or practices, it has little human meaning unless it addresses a context which explains why citizenship is so important. As M. Kammen pointed out in a study of a similar nature to this dealing with the United States, whether we are conservative or radical, we cannot answer even basic political questions without addressing the issue of the good to which such activities were directed.2 Edmund Burke stated this clearly in these words: 'Abstract liberty ... is not to be found. Liberty adheres in some sensible object; and every nation has formed to itself some favourite point, which by way of eminence becomes the criterion of their happiness'.3 Thus, to write about citizenship as something we do politically presumes answers to all the
2
FROM SUBJECT TO CITIZEN
Kantian questions: Who am I? What can I do? What may I hope for?, 4 even if its main concern is the second question. These questions are more than humanly related. It is clear that we work to achieve certain goals which we believe will be beneficial and usually those goals are more important than the work itself. But the questions of who someone is, how they identify themselves and the practices they engage in as a citizen are structurally related as well. The way they act politically may, and can, change their sense of self and identity - two distinct analytical concepts - as much as the converse. It is thus possible — as we will show in the first chapter of this book — to start with a discussion of what is a useful contemporary definition of citizenship in order to reach understanding of what identity an individual assumes and what that individual hopes for. Indeed, it is essential to define the object we discuss, precisely because it is so confused with fundamental philosophical questions like 'Who am I?' that it could get lost in that interminable canvas. These words are being written at a time when the Australian government is promoting the study of citizenship. There have been a spate of talks, meetings, papers, government reports and books on the subject in the last five years after a silence about it which lasted for over seventy years.5 This literature highlights the many ways in which 'citizenship' has been used since Australia became a Federation in 1901. This 'Heinz fiftyseven varieties' of citizenship stems partly from the general notion that to be a citizen is a 'good thing' and that it is useful to attach the label to many activities which, strictly speaking, do not concern citizenship at all. In Australian history it has been particularly confused with immigration. 6 In all this new literature there is a common theme which this book does not share as it believes that it provides a lopsided starting point for a discussion of citizenship. To attain some coherence in the face of the 'Heinz' understanding - which comes from a mere historical investigation into the ways in which the term has been used here as the starting point for understanding what it is to be an Australian citizen - the major authors have turned to the Anglo-Saxon, and in particular, the British theoretical literature on the subject. Thus we meet again and again reference to a gamut of thinkers who typically start with T. Marshall, and pass through John Rawls, Bryan Turner to David Held, and, among the more critical thinkers, include I. M. Young and Anna Yeatman. The views of these thinkers are frequently valid but they are clamorously Anglo-Saxon, and often presume quite unconsciously an Anglo-Saxon historical, theoretical and ethical tradition of the good. Apart from the theoretical reasons for rejecting this tradition as less useful for a working definition of citizen than others, we should at least be on our guard in a multicultural Australia about mistaking identities. 7
INTRODUCTION
3
What is obvious about adopting Anglo models of citizenship for a society with over a hundred ethnic groups of quite different traditions which conflict with the premises and the content of the Anglo-Saxon authors? It is necessary to consider the other theories of citizenship which exist and antedate any Anglo-Saxon notion since the choice of model will affect what we measure Australian practice against. This book therefore starts by examining the different ways of understanding citizenship in its legal-political sense, with a view to adopting a less ideological view than most of the new literature. This will be achieved by situating the predominant Anglo view in a much wider discussion less familiar to English speakers than to other Europeans. The object is to arrive at some precision about the categories we should be discussing when our subject is citizenship. Only when we have a clear notion of the structured categories which combine as citizenship will we be able to start filling and emptying them with our changing historical notions and activities and relate them to the questions: 'Who am I?' and 'What may I hope for?' Anticipating what it hopes to show, this book adopts a definition of citizenship which emphasises what people do rather than what they may get. But, as was stated at the outset, it does not deny the motive of hope. There have been three main understandings of what it is to be a citizen. The first two understandings originate within Europe, and the third is emerging in the 'globalising' world of economies we are starting to enter as we approach the twenty-first century. Each has left traces in its successor and, sometimes, neglected or rejected parts of the older understanding are seen anew as suddenly relevant again. This is particularly important as Australia now appears to be in an uncertain transition between the second and third understanding and able to contribute to the refinement and elaboration of the new notion of what it is to be a citizen. Each of these three understandings shares common principles in the same structure. A citizen is always defined primarily by what that person does rather than what they get, and the definition identifies particular activities among the myriads which make up our lives. But the context of these actions is political: they presume a political context or world as constituted by these activities and as constituting them. This constituted world of the state decides what sort of acts identify who is a citizen. Finally, the territorial dimension of the area within which they are enacted decides who belongs to a particular body of citizens - who has a right to participate in the acts of citizenship themselves. The rules of inclusion and exclusion are explained by the history that political world tells about itself. This gives it its self-identity as it reflects upon itself. Ultimately, what is important is not the truism that there is always a community prior to the context and the acts of citizenry within it, but how that community defines itself and what it thinks is 'good'.
4
FROM SUBJECT TO CITIZEN
An adequate discussion of what it is to be a citizen in the contemporary world must address these three abiding themes, that is, what acts in what context each advances explicitly and implicitly, and what justification each gives for giving only some people within that context the right to act as citizens. These three areas are structurally determining. The three main understandings of citizenship we have identified emerged: 1 in the Greek city-states; 2 in modern European nation-states after the eighteenth century; and 3 in those 'global' supranational institutions whose emergence after 1957 has spelt a relative end to the sovereignty of the nation-state. Only the third incorporates traditions and histories coming from outside Europe and attempts to address the problems of a truly multicultural world. It is fairly obvious that after identifying the acts which are required for citizenship of a democratic polity the most adequate notion of a democratic citizen is that which aims to attain the most inclusive membership of a particular political context, usually a state. To focus merely on the acts without identifying who, among those affected by them, also makes them, is not very helpful in reaching an ethically adequate definition of democratic citizenship against which to measure the actual practice of Australia. This can be made clearer if we tabulate schematically those contexts which are assumed to have been or are democratic (see table 1). In such a schema we see that Athens, so often referred to as the first and most democratic of polities on the basis of the direct democratic acts of its citizens, excluded from citizenship the majority of those human beings living on its soil, notably slaves, women and foreigners. A parallel is South Africa under apartheid, where whites acted democratically but the black majority was almost entirely excluded from citizenship acts in white areas, effectively becoming civic nullities. The insistence that a person had to belong by blood to a putative original family group before that person could belong to the citizenry - the famous 'natural family' model of the state - was structurally related to the degree of exclusion. As Athens outgrew the tiny original community which could be thought of in 'familial' terms, its myth of a 'blood' descent excluded a majority, who became subject to laws not of their making. It is difficult to distinguish this from an oligarchy whose internal rules are democratic. Similarly, if we consider the regional globalising polities which will characterise the next century, we can see that these can only be inclusive if they give up the notion that belonging to a pre-existing national family is what entitles a person to act as a democratic citizen.
INTRODUCTION Table 1
Contexts of democracy Inclusion
Exclusion
Acts
Context
Athens
Direct democracy
Small multiNatural family All not related by blood ethnic city state kin
Modern state
Representative democracy
Large multiethnic nationstate
Fictitious national people
Not born on soil
Regional political polity (European Union)
Representative democracy Supra-national
Large multiethnic regional
Nationals of polity
Aliens
The globe
All people
No one
World state
In sum, the sort of acts we must specify as necessary for a democratic citizenry is not sufficient to decide whether democratic citizenship rules exist. This is also decided by an examination of the rules concerning exclusion: who is excluded from belonging; why and how? It has gradually been established that the less such frontiers or barriers exist, the more democracy is possible. Conversely, the more there are barriers, the more a non-democratic citizenry will emerge in any expected context of today and of the future. In this book I will therefore try to order the exposition, where appropriate, about the theory and practice of citizenship in Australia since 1901, by reference to the acts and to the context of the state which is constituted by and constitutes those acts. But the centrality of 'belonging' to the understanding of citizenship is the main theme of this book. Who may and who may not belong to Australia's citizens is established formally and informally, or legally and socially. The formal rules have primacy and they necessarily constitute the first third of this book. It is not simply in the formal rules but in the human relations of practical life that the implications of those formal rules are seen. Who is excluded; how they are excluded; and the rationalisations which were and are given in public and everyday discourse and practice form the bulk of this book, which looks at the internal and external frontiers. Finally, what happens here in theory and in practice is compared to what is being done elsewhere to adjust to the new challenges of the twentyfirst century. How far, to use a voguish term, do Australian standards and proposals for citizenship, measure up to international 'best practice' in citizenship rules for a democratic society in today's world? How do we reply to the increasingly vocal critics of democracy who argue that it is
6
FROM SUBJECT TO CITIZEN
not obviously the best system for tomorrow's world and that it only looked good when compared with totalitarian systems? 'Belonging'
The choice to focus on 'belonging' is easy to explain. Today we live in a world of massive migrations. These ebb and flow and will continue to do so into the twenty-first century. Millions leave their place of birth for short- or long-term absences, some never to return, though less often than in the past. They move around incessantly as they follow the job market in a move from poorer to richer places; as they are drawn forth as refugees when nations and civilisations war, and systems - like the Communist system - collapse. The world becomes increasingly a place of multi-ethnic states, with up to 30 per cent of the population coming from other societies. Australia is emblematic of such multi-ethnic societies, with about 23 per cent of the population having been born overseas. These newcomers share a present. If they stay a long time, they may share a future. But they almost never share a past. They have no common histories or cultural memories, and frequently - as is the case for the 100plus ethnic groups in Australia - do not share a language or a religion. Practically no country, nation or state can speak of 'our' history. All are the products of different pasts which have somehow to be united in a collectivity or a community in the meantime. What is to be done with such people? It is clear that if they are excluded from decisions about what the collective good should be by earlier residents of the polity they come to inhabit in numbers that are too great (that is, numbers that are excluded from citizenship), then those societies are no longer able to claim to be democratic. Most societies continue to insist that such people prove that they 'belong' to some dominant national family first. The higher the standard, the less democratic a society becomes. The problem of today and the future is that most migrants do not wish to 'belong', except in the most basic of senses, that of participating in the overall 'political' decisions which concern the multicultural unity. This is experienced by the older, stable homogeneous societies as very threatening. The 'communitarian' school argues that they are like families or clubs and have the right to exclude anyone who threatens their self-identity. In a softer version, it argues that the rate of flow or entry must be something the 'host society' decides is commensurate with its capacity to absorb, assimilate and integrate. But that school is passed up by economic imperatives which mean that multi-ethnic populations already
INTRODUCTION
7
exist. In an extreme form, communitarianism will mean exclusion and therefore strife. As against the communitarians, there are the liberals, who, faced with multi-ethnic realities, argue for multicultural citizenship. This is a notion which is still being elaborated. Essentially, it does not argue that newcomers show that they 'belong' before those persons can be citizens. It is an inclusive system which does not demand much civic virtue. Rather, it sees a collectivity and a unity, a present and a future, as something forged together in what will only work if all the different voices are heard. It is 'strong democracy'. This book follows the latter thinkers as it argues that the story of Australian citizenship, a forerunner of a multicultural world in development, shows that 'strong democracy' to be the more human, and therefore the practical way, forward.
PARTI
From Subject to Citizen 1901-1996
The first four chapters of this book trace the progress from the status of 'subjects' of the British monarch which Australia's inhabitants had in 1901 to that of 'citizens' of Australia which they enjoy in 1996. Citizenship had a long history before Australia was occupied by the whites. The Australian people (s) inherited part of that history and developed on it. It also continued in parallel fashion elsewhere, to be known and learnt about by the inhabitants of Australia. Its basic ingredients are discussed in chapter 1. These ingredients were established in a structure long ago in the Greek city-states: a citizen was someone who had full and equal rights to decide what measures should be taken to attain the collective good for all citizens; the citizens deciding on and acting for the collective good thus formed a community. The size of the community the space over which its notion of the good extended - was then one small city, some of whose inhabitants 'belonged' in the community. A citizen was thought of as if he were a family member, since who could 'belong' to the community was a family member linked by kinship ties. However, as we show, the communitarian model was superseded when the nation-state replaced the city state in Europe in the fifteenth to twentieth centuries. Then the size of the political community became much bigger. It could no longer be mediated or thought of as united by kinship ties. In its place was created afictitiouscommunity, the nation of citizens who might never know each other. It was created in a ruthless suppression of difference and drive to uniformity and homogeneity through indoctrination and socialisation. The new 'national family' was built on forced amnesia; the production of one ideological and false collective memory. It was fragile and fraught with a tendency towards disintegration - its drive, as Rousseau (in unusual agreement with Norberto Bobbio) stated in his consideration of the Abbe de Saint Pierre's Project
10
FROM SUBJECT TO CITIZEN: 1901-1996
for Perpetual Peace, was towards a dialectic of self and other, and towards internal and external war as the natural conditions of the nation-state system.1 Only those who belonged to the national community could ever be citizens. The rest were silenced. This did not pose an enormous problem while most inhabitants of a nation-state were born on its soil and shared its values. But as we show in chapters 2, 3 and 4, 98 per cent of Australia's population is made up of migrants, 'outsiders' coming into what was falsely described as a 'desert'. While the bulk were of the same stock - British and Irish - there was not much of a problem about becoming 'citizens'. But in a country of migration the issue was always that any outsiders had to prove they belonged by signs of adhesion like permanent residence, the learning of the national language and rejection of past associations. After 1945 the notion of the Anglo-Celt community became increasingly untenable, although it was bitterly defended for many years. We trace how it was increasingly relinquished as Australia became less and less insistent that newcomers prove they belonged before getting citizenship. The struggle highlighted the impracticability of citizenship based on prior adhesion to the single fictitious collective memory, that of the national family, in a world of rapid mass migration. By 1995 Australia was remarkably advanced in its rules, which allowed easy access to citizen rights for the waves of newcomers which were its inhabitants. However, that is only half the story of Australian citizenship. The rest is also traced in those chapters. Clearly, too-exclusionary a set of rules would mean too many people without citizen rights for a country to claim to be a democracy. With 6 per cent of its inhabitants not citizens, Australia is very good in this regard. But Australia has claimed since before Federation to be a democracy. When we look at what a citizen here does as a right once admitted to that status, Australia lags greatly behind 'best practice' for democratic citizenship in a nation-state no matter at what point we look at the situation. Indeed, the basic right of a democratic citizen since the Greeks, the right to a vote of equal value still does not exist in Australia. Nor has it ever existed in practice in all our history, although there are marked improvements in recent times. We show that power 'from below' has not existed here both because the Anglo-Celt self-identity of Australians meant adherence to British legal and political practices which were themselves exclusionary, and because the Australian collective memory was quite false in its assumption that it had nothing to learn about democracy and human rights outside the closed British heritage. What was striking was that the requirements for democracy in a largescale nation-state - the procedures of representative liberal democracy, 2 - have not existed adequately here in 1901-95, and have often been
FROM SUBJECT TO CITIZEN: 1901-1996
11
rejected when proposed, as we show for the Whitiam period (1972-75). With few of the economic and social rights, or those to freedom of speech and organisation protected by law, and the less so because unlike most modern democratic polities Australia had no bill of rights in its Constitution, the very conditions for the existence of the neo-Kantian citizen who 'dares to think' for himself or herself did not exist until the last decade.3 Nevertheless, we show that bit by bit the pieces of the jigsaw of an adequate rule of law, where the citizens are free because they make the laws under which they live, have been assembled. There are still gaps and closures which prevent other parts of the mosaic being laid, but the basis for completion is finally there. The false start of the Whitiam period now is being realised in adequate citizen rights. The closures threatened by a reversion to a 'new nationalism' and 'new racism' which has emerged since 1983 need noting as they highlight the danger of the combination of economic rationalism and the slogan of national productivity and competition in a world where national sovereignty is in decline.4 It is Australia's proud boast that its multicultural policies show the way to the management of cultural diversity in a globalising world. If more were learnt by studying the 'state of the art' theory of democratic citizenship which has been developed elsewhere in the globalising world, this boast would be more convincing. That theory and practice is discussed in chapter 1. While Australians have, however, ignored it, it makes clear that since the object of politics in the modern nation-state is to manage diversity and to secure to each citizen and their communities a sense of dignity and well-being which will make them willing partners in the 'everyday plebiscite', there must be participation in decision-making as close to each problem as is possible. So there should be more democracy in more places, and each different community should manage its own affairs as much as possible. This is the participatory, decentralising model of semi-federal government. It runs counter to a centralising, managerial system of experts. This will be doubly so in any regional economy and polity like the Asia Pacific Economic Cooperation organisation. We sum up that forward-looking theme in Part III.
CHAPTER 1
Civis Romanus Sum
We must delight in each other, make others' conditions our own, rejoice together, mourn together, labour and suffer together, always having before our eyes a community as members of the same body. ... in all times there must be some rich some poor, some high and eminent in power and dignity, others mean and in subjection.
John Winthrop, Governor of Massachusetts, 1640
Zeus was afraid. For want of political skill men could not live together in communities. They were always at war with each other. So he called his winged messenger Hermes and told him to impart to 'men the qualities of respect for others and a sense of justice, so as to bring order into our cities and create a bond of friendship and union'. Hermes was puzzled. Did Zeus mean that these skills should be given to some men only, so that there should be experts in politics, like doctors in medicine? Or should all men be given these qualities? Zeus replied: 'Let all have their share. There could never be cities if only a few shared in these virtues, as in the arts'. And so the Athenians - who would have 'refused to accept anything but expert advice in any craft' - 'when the subject of their counsel involves political wisdom, which must always follow the path of wisdom and moderation ... listen to everyman's opinion, for they think that everyone must share in this kind of virtue; otherwise the state could not exist'.1 This allegory is one of the earliest assertions in the Western tradition that the basis of survival of state power is equal participation in what it does by all its members. States cannot exist unless all people's opinions about what should be done by and in them are taken into account. But what could such an allegory mean practically? 13
14
FROM SUBJECT TO CITIZEN: 1901-1996
A generation after Protagoras recounted this myth about the beginning of political society, Aristotle started to reply to that question. He took up the theme that 'states are aggregates of citizens' (meaning those who make up the city) all equally endowed with political wisdom. Aristotle makes clear that if a state is an 'aggregate of citizens', then the starting point for understanding of the state can only be an adequate understanding of a citizen. The clearest definition he could hope to give of the concept of citizen was that what distinguished the citizen from all others was 'participation in giving judgment and in holding office' in that state: 'As soon as a man becomes entitled to participate in office, deliberative or judicial, we deem him to be a citizen of that state; and a number of such persons large enough to secure a self sufficient life we may, by and large, call a state'. With his customary caution, Aristotle would claim no more than that his definition was 'best applied in a democracy'. 2 Why should a book concerned with the Australian citizen at the beginning of the twenty-first century start with a Greek myth told over twenty centuries ago in a world vastly removed from our own? The answer is that it was the beginning of a debate about what it is to be a democratic citizen which has set the terms of that debate ever since for Western polities. To decide what it is to be a citizen always demands answers to these questions: What is the limit of the political context?; Who belongs in it?; and, What do they do? Though Athens and the terms in which its inhabitants thought is so distant in history that much of what the Greeks wrote is completely irrelevant today, what still matters is the impossibility of thinking of state and citizen except as a Janus mask. Protagoras told his story in a company of philosophers who still confused the authority which came from gods with reason which came from men, and who were unravelling those contradictions in philosophical debate. Aristotle translated their concerns and affirmations into a practical language which, to some extent, reconciled their tensions. We can recognise in his empirical approach to the issue much that is relevant to discussion today. First, we recognise that we are born into complex social worlds which are already rule-governed. The political and social wisdom we acquire is not obtained by a passing Hermes giving us a tap with his staff. These rules - or the rule of law - are antecedent to the people who operate within it. Their combination of procedures are a Constitution. Citizens defined as those who have the right to 'pass judgment' or decide in practice what is justice, have roles which are governed by procedures established in this Constitution which may vary practically from state to state. This may vary in the powers it distributes to those who live within it, but if it is to approach the position logically, consistent with the participation of all citizens in 'giving judgment and holding office', then the
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procedures it lays down must be of a certain sort. Thus in the Athenian Constitution of Solon - often regarded as the first statement of the rule of law - the most democratic feature was 'the right of appeal to the jury court - for when the people are masters of the vote they are masters of the state'.3 Thenceforth, always, what makes a democratic citizen has been the right to vote as an equal of every other citizen who votes and the exercise of that right. We will labour the point deliberately because it is so important to contemporary debate. A democratic citizen is defined by what that person does rather than by what they get. What they get, and all other outcomes of that vote depend on the vote of equal value. Moreover, they are not democratic unless they are seen through their mastery of the vote to be the foundation of state power, without which it 'could not exist'. The democratic citizen is a person whose right to participate in making state decisions about the rules which would govern conviviality and make community possible is, in Aristotle's words, 'unlimited'. Aristotle did not deny that in other 'Constitutions' there could be citizens who were limited in what political activities they could engage in or what political offices they could hold. But in democracies, the Constitution made their political rights unlimited. Such an assertion by Aristotle was understood practically, or by reference to a real context. The first of these contexts of which he thought was the agora or place where the citizens came together to participate in judgment. It is crucial in any understanding of citizenship to remember that the preliminary to the vote is the debate and discussion in which all are equal. Its object is to arrive at clarity about what issues are explicitly and implicitly involved, and to agree on what the good solution should be. The vote only comes when there is disagreement, or at the end. The essence of the participation is to arrive at a consensus. It is imperative, therefore, that all be in the open and no secret counsels take place before or elsewhere. This is why the Latin for a democracy is respublica, what is done in public. Since the good decided on by a polity is consensual it can easily be revised, if it is discovered that it is wrong, at another meeting. One implicit presumption in all this debate is that there is a common language, understood in both the narrow sense of spoken language and in the wide sense of shared experience.4 The second of these contexts of which Aristotle thought was an invisible one. Practically, the citizen's primacy as the source of state power also only arises in a wider context. In the first instance this is a legalpolitical context, that of a Constitution. Whether the citizen is a democratic citizen or not depends on the Constitution and the rule of law it prescribes. Does that establish politically the notion that all are equal in their power of judgment concerning the way to make society cohere as a
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state, or are they not? But a Constitution can be either written or unwritten, and when considered in both its senses merely refers to the combination of rules and procedures for political decision-making in a particular area or domain. These clearly have changed over history and need to be specified to broach the issue of what it is to be a citizen today.5 Later, we will briefly trace the answer to that question to establish what men (and later, women) thought were the best procedures to attain that outcome, given the context within which the 'democratic citizen' would act. Here we emphasise that in Athens - because of its small territory and small population - all citizens could come together physically in the agora and make their laws directly themselves. They needed no representatives. Direct democracy was the primary act of citizens in Athens. This is, however, less important than Aristotle's next proposition. For Aristotle, the primary question after defining a citizen by such direct democratic law-making had been the practical one of who could be a citizen, or put another way, how far did a polity extend. On this he was quite clear. Being a citizen depended on being a blood descendant over at least two generations on both sides of a citizen-parent. In other words, the right to citizenship depended on belonging to a family of citizens, to being born into a state where everyone was related by kinship ties.6 This followed from his assumption that all city-states grew out of an original or a combination of original families: it was out of the association formed by men with ... women and slaves, that a household was first formed ... The next stage is the village, the first association of a number of houses for the satisfaction of something more than daily needs. It comes into being through the processes of nature in the fullest sense, as offshoots of a household are set up by sons and grandsons ... The final association, formed by several villages, is the state ... It follows that the state belongs to the class of objects which exist by nature, and that man is by nature a political animal.7
So the aggregate of citizens who make up the state are, in fact, families ultimately united by blood, and a stateless person is, like Homer's mad man, without family, law, or home. Aristotle was quite aware that there were practical problems with such views. Who could really trace back a family beyond a few generations let alone to a great founding father? Who could deny that outsiders could be and had been justly made citizens?8 But in the small, relatively ethnically homogeneous, city-states of ancient Greece it was possible to share in the myth that all citizens belonged to one great natural family ultimately united by blood - especially if whole sections of the community, like slaves and women, could
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be excluded as non-people. While city-states remained as the significant political association, common collective memory(ies), common experience, and common culturally determined goals could sustain the myth that state was no more than family writ large and that it was reasonable to give the fathers, or experts, the major day-to-day decision-making power, even if final power rested in the hands of the people. Indeed, a by-product of the familial notion of the state was the patriarchal theory of divine right. This was still strongly argued by R. Filmer as late as the seventeenth century.9 What it was to be the Greek citizen of myth is described in an English language text with such felicity that a passage is worth quoting at length: Thus the meaning of citizenship was plain. Nothing stood between you and your fellows in the community. Citizenship was obviously and visibly a life, your whole life, with common dangers, common responsibilities, common enjoyment, and common ambitions. Your education, your character, your religion came direct from the written and unwritten laws of your city. Your happiness was to fill satisfactorily a recognised place, to be acknowledged by your fellows in doing so, and to appreciate, in common with your city and your race, what Pindar emphatically calls 'the pleasant things of Greece'. The commonest Greek citizen could never forget that his actual existence was bound up with the discharge of civic duty. He would not be allowed to forget it. If he and others were careless of bodily training, or neglected their drill by sea or land, their city might be defeated in its next battle with the people over the way, and terrible losses, or worse, might happen in consequence to his family or himself. And so the mind was not distracted. The path of duty was plain. The soldier was the citizen soldier, the poet a citizen poet, the artist a citizen artist, and the philosopher a citizen philosopher.10
It was, thus, a world with no separation between private and public worlds and no closed doors; it was a world where community and public space were meaningless distinctions; and it was a world where 'civic virtue' came naturally; and there was a shared sense of what was good. With the disappearance of small city-states like those of the ancient and medieval/renaissance worlds, the 'democratic' context for debate about what citizenship is, and should be, disappeared. In its place there existed, until challenged politically, the feudal system and the absolutist state. But in the fifteenth century began the re-emergence of the conditions for a renewed democratic context. Then the basic structure, if not the content, of the Greek argument that citizenship is defined by what a person does politically rather than what they get, reasserted itself. Aristotle was rediscovered in the city-states of central Italy.11 It was a world not greatly structurally different from that of the ancient Greeks - a world of rich city-states, though sometimes with maritime empires, built on kinship ties of great families. The context remained much as it had
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been described by the Greeks. Clearly, everyone was born into an already existing structured state governed by laws, and they were the citizens of that state if they participated directly in its politics. Usually, that participation was more limited rather than less as few of the city-states were democracies. Indeed, as Plato became more favoured than Aristotle by the philosophers of the epoch, democracy was not the model held up as ideal. But the basics of the context went unquestioned. Context established the possible logics about who could belong. What is important to a contemporary theory of citizenship for Australia on the eve of the twenty-first century is that this context started to disappear in the fifteenth century. The consequence is that the only Greek notions of much use thereafter were those compatible with a new context. What remained of the Greek discussion of the democratic citizen was the structure of that debate. It has become meaningless to discuss a democratic citizen unless it is recognised that this implies that all citizens are equal in power and that through the vote the majority rules. Again, it has become meaningless to discuss a democratic citizen unless it is recognised that in democratic politics - and perhaps only in politics - there is no prerequisite about expertise, as the only possible starting point is that every citizen has something to say about what is just, about what ought to be done by the political collectivity.12 But the range of issues covered by those decisions has become quite different. Consequently, debate about what a citizen does also changed completely. If it is what a person does which is crucial to the meaning of citizenship rather than what they get, this change marked a major rupture with the Greek way of understanding citizenship. We can trace the beginnings of the change in context to the emergence of the absolutist state around the fifteenth century. Starting with those of England and France, but slowly becoming characteristic of all of Europe, these typically emerged through the imposition of the rule of one feudal lord, often traditionally recognised as sovereign, over all the others in a particular territorial space. Usually this meant the conquest of different ethnic groups, with different languages and traditions by a dominant group and the subordination of those groups by force to the dominant group. We think typically of the conquest of Wales, Ireland and Scotland by the English. The minorities were never completely destroyed although their traditions sometimes only lived on as vestiges or as folklore. We will return later to the forcible creation of nation-states, by which we understand the establishment of an hegemonic dominant culture in some European states. Here we merely recall some of the implications for the understanding of citizenship as they were aptly summed up by Ernest Renan in his
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celebrated speech of 1882: Qu'est-ce qu'une nation? Since such unity is always built brutally, what is essential is that the losers forget: Every French citizen must have forgotten St Bartholomew or the massacres in the Midi in the XIII century ... the essence of a nation is that all individuals have many things in common, and they must all have forgotten many things ... Where the historical fact is not buried in a glorious myth of a common past, or where separate communities continue to coexist, there can be no national unity: the existence of a nation is a daily plebiscite ... 13
With the emergence of the nation-state it thus became impossible to maintain the myth of a single familial origin unless that was imposed after the event. The modern state emerged first, and then came the myth of a shared national past deliberately fostered from above.14 We will discuss how this was done later. Here, what needs to be noted is that the context changed from a small, ethnically homogeneous state united by language and myth to large, ethnically diverse states which had different languages and collective memories at the time when they were established by force. This ended for critical thought any possibility of a theory of state-building based on the family or communitarian model expressly adopted by Aristotle and the neo-Aristotelians.15 It also meant that the right which identifies who is a citizen - the equal vote - became no more than that. No longer did the context allow citizens to make the laws directly. Nation and State
If we start from the practical context as a structured complexity which always precedes the men and women who are born into it, we can distinguish the major change in context since the Greeks. Whereas their context was that of tiny city-states which could be thought of as if they were large families, by the nineteenth century this context had become the nation-state. Consequently, with its emergence the nature of politics and what it was to act as a citizen changed. Direct democratic participation in government was no longer possible as all the citizens could no longer assemble physically in one place to make the laws. Representative government became the only feasible alternative in the new context. The celebrated early formulation of that change was given by Benjamin Constant in his lecture of 1819 on 'Liberty among the Ancients compared with that of the Moderns'. It is the more trenchant since Constant had earlier been a supporter of Jean-Jacques Rousseau's belief, that in some places the Greek model could still apply. He told the 'gentlemen' who listened to him that: 'ancient republics were restricted to a narrow
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territory. The most populous, the most powerful, the most substantial among them, was not equal in extension to the smallest of modern states'. This meant, he continued, that in the place of direct democratic participation there could only be representative government in modern societies. Such procedures comprised at least those which guaranteed that: 1 power is exercised by a very high number of the people affected by it; 2 decisions are made by the majority of that number; 3 that they are made between real alternatives by people able to make real choices; 4 that this means that they have freedom of conscience, speech, organisation and whatever else is necessary to the other procedures; 5 that there are, therefore, rights guaranteed by a rule of law.16 In other words, it establishes what we think of as representative liberal democracy: regular elections for representatives in a multiparty system, and the responsibility of the elected representatives to the electors. For the zoon politikon, whose whole life and happiness was bound up with that participation, had to be substituted a notion of the citizen for whom even democratic politics was a part of life only. It is worth while citing Constant's words at length as they provided categories which determined debate about what it was to be a democratic citizen until very recently. First ask yourselves, Gentlemen, what an Englishman, a Frenchman, and a citizen of the United States of America understand today by the word 'liberty'. For each of them it is the right to be subjected only to the laws, and to be neither arrested, detained, put to death or maltreated in any way by the arbitrary will of one or more individuals. It is the right of everyone to express their opinion, choose a profession and practise it, to dispose of property, and even to abuse it; to come and go without permission, and without having to account for their motives or undertakings. It is everyone's right to associate with individuals, either to discuss their interests, or to profess the religion which they and their associates prefer, or even simply to occupy their days or hours in a way which is most compatible with their inclinations or whims. Finally, it is everyone's right to exercise some influence on the administration of the government, either by electing all or particular officials, or through representations, petitions, demands which authorities are more or less compelled to apply or heed. Now compare this liberty with that of the ancients. The latter consisted in exercising collectively, but directly, several parts of the complete sovereignty; in deliberating, in the public square, over war and peace; in formalising alliances with foreign governments; in voting laws, in pronouncing judgments; in examining accounts, the acts, the stewardship of the magistrates; in calling them to appear in front of assembled people, in accusing, condemning or absolving them. But if this is what the ancients called liberty, they admitted as compatible with this collective freedom the complete subjection of the individual to the authority of the community. You
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find among them almost none of the enjoyments which we have just seen form part of the liberty of moderns. All private actions were submitted to a severe surveillance. No importance was given to individual independence, neither in relation to opinions, nor to labour, nor, above all, to religion. The right to choose one's own religious affiliation, a right which we regard as one of the most precious, would have seemed to the ancients a crime and a sacrilege. In the domains which seem to us the most useful, the authority of the social body interposed itself and obstructed the will of individuals. Among the Spartans, Therphandrus could not add a string to his lyre without causing offence to the ephors. In the most domestic of relations the public authority again intervened. The young Lacedaemonian could not visit his new bride freely. In Rome, the censors cast a searching eye over family life. The laws regulated customs, and as customs touch on everything, there was hardly anything that the laws did not regulate. So, among the ancients the individual, almost always sovereign in public affairs, was a slave in all his private relations. And as a citizen, decided on peace and war; but as an individual he was constrained, watched and repressed in all his movements; and as a member of the collective body, he interrogated, dismissed, condemned, beggared, exiled, or sentenced to death his magistrates and superiors. As a subject of the collective body he could himself be deprived of his status, stripped of his privileges, banished, put to death, by the discretionary will of the whole to which he belonged. Among the moderns on the contrary, the individual, independent in his private life, is, even in the freest of states, sovereign only in appearance. His sovereignty is restricted and almost always suspended. If at fixed and rare intervals, in which he is again surrounded by precautions and obstacles, he exercises this sovereignty, it is always only to renounce it.17 But in the modern state the benefits and the reason for attachment to the polity which had existed when every citizen shared in national sovereignty had disappeared: [Then] ... the will of each individual had real influence: the exercise of this will was a vivid and repeated pleasure. Consequently the ancients were ready to make many a sacrifice to preserve their political rights and their share in the administration of the state. Everyone, feeling with pride all that his suffrage was worth, found in this awareness of his personal importance a great compensation ... This compensation no longer exists for us today. Lost in the multitude, the individual can almost never perceive the influence he exercises. Never does his will impress itself upon the whole; nothing confirms in his eyes his own cooperation.
In the changed world of the nation-state men found their pleasure in a private realm of commerce, understood in the wide meaning given by French to that term. Liberty consisted of the guarantees given by political institutions that they could enjoy those private pleasures. In other words, politics existed as a public realm of no affect which functioned to guarantee human rights. Life was not politics. Other standards applied
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in private realms. This had not been the case when Spartan ephors were concerned about how Therphandrus strung his lyre. Constant therefore warned against the desire to learn from theories two thousand years old. This was a failure to 'recognise the changes brought by two thousand years in the dispositions of mankind'. Liberty was freedom from the authority of the social body, not its expression. It was the right to individual difference. It referred to what took place in the private pleasurable (affective) realm: Individual liberty, I repeat, is the true modern liberty. Political liberty is its guarantee, consequently political liberty is indispensable. But to ask the peoples of our day to sacrifice, like those of the past, the whole of their individual liberty to political liberty, is the surest way of detaching them from the former and, once this result has been achieved, it would be only too easy to deprive them of the latter.
Constant's identification of the private realm with that where happiness was made differently by different individuals, also meant that justice was confined to the public realm and seen as radically divorced from happiness. Political liberty certainly guaranteed interests, but through this it also built a sense of nation. In this learning through practice which was certainly part of the decried Rousseau who lingered on in Constant - we see premonitions of Renan's notion of the nation as an everyday plebiscite. Constant also continued the Greek notion that people were sovereign, although he decried direct democracy on the grounds that only representative democracy was practical in the modern nation-state. The representative system is a proxy given to a certain number of men by the mass of the people who wish their interests to be defended and who nevertheless do not have the time to defend them themselves ... the people who, in order to enjoy the liberty which suits them, resort to the representative system, must exercise an active and constant surveillance over their representatives, and reserve for themselves, at times which should not be separated by too lengthy intervals, the right to discard them if they betray their trust, and to revoke the powers which they might have abused.
The object of all this is that they should not give up their share in government too early.18 In his lesser-known text on the sort of procedures which would ensure that desired outcome in a large state, he amplified on the views he expressed in his famous lecture by stating: Assemblies, however much they may be divided up in their composition, have too much of a tendency to develop an esprit de corps which isolates them from the nation. Located in the capital, far from the group of people who
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chose them, the representatives lose sight of the usages, the needs, the way of life of the departments which they represent. They give themselves up to general ideas, to theories of uniformity, to mass changes, to universal reformulations (refontes) which lead further on to upset, disorder and incertitude. This disposition must be fought ... The bigger a state is, the more it is powerful at the centre, the more a single electoral body is unacceptable, the more popular election is indispensable. A population of a hundred thousand could vest a Senate with the right to nominate its deputies; federal republics could as well. Such a system, otherwise rather unreasonable, would at least not have the problem of sacrificing to the ignorance of an assembly and the caprice of the executive the happiness of the most distant regions.
As this suggests, no longer was there in Constant the notion of a united general will or interests, but partial interests which had to negotiate a common accord. But there was no question that even in the modern state the people remained sovereign and thus their elected house pre-eminent and only removable according to strict constitutional procedures after there had been free elections. While fully aware of the problems of elections, he was quite clear that only where there were truly open free elections of all branches of government could any other organ of government dissolve parliament.19 Representative democracy spelt the end of the essential qualities of the debate about what it was good to do in any particular case. No longer could a community come and reason together in an agora. No longer was it possible for them to share a common language in any sense. They had neither common life-experiences, common identities, nor, as we shall see, even common spoken languages. A notion of the good arrived at by way of agreement, and not so terribly important, since mistakes could be rectified simply by calling the citizenry together again at short notice, had to be replaced by another notion. Decisions which were made had to hold at least until the next elections and that demanded a more limited and more rigorous notion of the good. The reason behind it had to be more than the exchange of opinion of the Athenians. A new common political language which was specific to politics and artificial was evolved. It was a language of clear, hard, rational, affectiess limited decision, whose procedures were acceptable precisely because their mathematical nature made them belong to no one. Above all, the good lay in the observance of the procedures which had to be completely transparent, where most of life was still private or secret. This is why the private and its qualities could not be allowed to intrude into the public realm. That would be to confuse private notions of the good with the essentially different public good. Machiavelli was the major thinker to make this clear when he constituted politics and the state as a separate realm with its own good %° This was the good which guaranteed the private and therefore difference.
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What is absolutely crucial in Constant's theory is the way it relegated old notions of community to the private realm. By the old notion of community we may understand the notion of a community as a natural phenomenon whose existence is measured by where it came from and not how it continually recreates itself. The form was characteristic of Aristotle's description of the family or the clan. Community is no longer the a priori of politics or the public realm, much less coterminous with it, unless it is rethought as something which is continually remade in some sort of joint practice. Certainly, the old idea of community would continue to be central to private life. Indeed, the political act of citizenship - the exercise of the equal vote by all - is directed precisely to guaranteeing the right to the private through the creation of rights to such primordial difference. But to defend difference, politics itself had to be different from other realms of activity, both in practice and in theory. With this sharp separation of community and politics also came what is seldom noted consequent on the constitution of the political as an eminently or relatively autonomous realm which is not dependent on other realms: 21 a rejection of the founding of notions of citizenship in sociology or in history. The implications, which have been keenly contested by some more fundamental communitarian theorists, are enormous. The most notable is the preclusion from discussions about citizenship of the notion that the values or attitudes which exist in the private realms should intrude into the public realm, either in theory or practice. It would henceforth be possible to use historical and sociological terms which explained consistently the political by reference to some realm more basic or prior only if they were thought of as something created in a practice - the everyday plebiscite of Renan - and not buried in an unprovable past. Perceptive writers like Bernard Barber, David Miller, and, in Australia, Chandran Kukathas, have recognised that this is the price of still using such notions and we will discuss their work critically later.22 The distinction made by Constant about context altering all the possible procedures through which the goal of control from below was maintained became the orthodoxy over the next 170 years. It is a cornerstone in Bosanquet and all the major British literature on citizenship which accompanied the introduction of a manhood suffrage in Great Britain after 1884. This is, however, well known in Australian discourse on citizenship and less interesting than the way it has remained the starting point for continental European debate. There it was extended in this century to encompass the notion that representative democracy should exist at more than the nation-state level, that of general elections to the national parliament. Progressive liberals have also been concerned to strengthen the local
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as against the central power, and to guarantee procedures which encouraged more self-management at a low level. There should be more representative democracy in more places, like regional and municipal governments.23 The theory they developed in the first forty years of this century was given elaboration in the Second World War and found fruition in many of the postwar Constitutions of European countries. The main thrust of these Constitutions, and of those later adopted when Fascism collapsed in some Mediterranean countries in the 1970s, was to empower those categories of the population disempowered by centralisation and corporatisation within states by giving them more direct power through popular initiative and referenda, and by decentralising nation-state power to create semi-federations. But to underpin these political arrangements there was a constitutional insistence on a minimum of social justice to ensure that the citizens of such democracies would be really sufficiently autonomous to make political decisions when exercising the vote.24 To be a citizen of a democratic polity after those innovations meant to enjoy those civil, political and social rights which enabled each individual of voting age to exercise a mature choice in voting as the equal of all others at several levels of law-making in a state. But this primary or basic right to vote for representatives wherever decisions were being made which affected the collectivity was not sufficient to establish what it was to be a citizen in a modern state. The simple right to choose representatives has been amplified to avoid the criticism that citizens' activities are simply a defence of selfish private individual and community interest and in conflict with both the right of the democratic majority to override sectional interest or to establish some standards of social justice for all, a sort of minimal prerequisite for being able to carry out one's obligations as a democratic citizen. This was the good which underpinned the primary good of politics, to protect the people through the law of human rights. Clearly one of the problems which faced Constant was the selfishness or self-interested nature of the citizenry - he described. Their private concerns threatened to keep them inner-directed, focused either on themselves or on their community. This posed a twofold problem. First, it tended to suggest that the best defence of the rights of the individual which he had listed was to limit the scope of democratic power to take away those rights by majority vote. It thus made democracy 'limited', which was a contradiction in terms. A decent, good liberal could not have a wholesale commitment to democracy but had to focus, like John Stuart Mill, on how to defend the minorities rather than to impose majority will. Second, even if the anti-democratic position was not adopted it still left out
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the traditional Greek concern with justice, in which citizens were called on in the polis to judge, or pass justice. When Aristotle replied to the question: 'Who am I?' he replied with an ethical answer. The Athenian T was an autonomous, reasoning being who is guided by ethical concerns for the good. As a citizen these were arrived at in practical or participatory judgment. The human beings who have a perception of good and evil whom he describes in the Politics are further described in the allied Ethics.^ With the emergence of the modern state it was no longer so easy to ally politics and ethics as it had been for the Greeks. They simply transferred their 'private' social values to the 'public' political realm as no distinction was made by them between the two domains. Both Jean-Jacques Rousseau and Immanuel Kant tried to find solutions which squared private individual or community concern with an obligation to justice in a wider society of the modern state. Both recognised the starting point in abiding ethnic difference and the need to protect the smaller communities against the larger. Thus, Rousseau could admit in his essay on languages that it was almost impossible to communicate across difference and to comprehend communities other than one's own, and staunchly defend the continued existence of the tiny communities of Corsica and Switzerland because of their 'Greek-like' organic community qualities, but - to replace Greek civic virtue - could only come up with the concept of the general will for large nation-states like France. 26 He explained his solution and defined a citizen there in the following fashion: Each of us places in common his person and all his power under the supreme leadership of the general will; and we take in each member as an indivisible part of the whole. Immediately, in the place of the individual person of each contracting party, this act of association creates an artificial and corporate body composed of as many members as there are voters in the assembly, and by this same act that body acquires its unity, its common ego, its life and its will. The public person thus formed by the union of all other persons was once called the city, and is now known as the republic or the body politic. In its passive role it is called the state, when it plays an active role it is called the sovereign; and when it is compared with others of its own kind, it is a power. Those who are associated in it take collectively the name of a people, and call themselves individually citizens, in that they share in the sovereign power, and subjects, in that they put themselves under the laws of the state.27 Because they understood this as an updated 'Greek' solution Constant was irritated and many others after him feared its threat to human rights and the private; the tendency to totalitarianism. 28 They saw that the 'people' were a fictitious abstraction and therefore prone to capture by minority ideologues who would then mould the rest into a preconceived image. This was not possible in the 'real' community of Athens. The
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preferred thinker of anti-Rousseauians was therefore Kant. He desired an autonomous, reasoning citizen who dared to think for (him) self - an individualist. This individualist was seen, not as part of a community which already existed, but as a potentially universal world citizen who would only make and obey law which could be universal. This individual, like Rousseau's, chose to join and thus make a community. As Kant put it in his Metaphysics of Morals: The first decision the individual is obliged to make, if he does not wish to renounce all concepts of right, will be to adopt the principle that one must abandon the state of nature in which everyone follows his own desires, and unite with everyone else (with whom he cannot avoid having intercourse) in order to submit to external, public and lawful coercion.29 Both Rousseau and Kant clearly departed from the British social contractarians of the sixteenth and seventeenth centuries on whose ideas they had built in other ways (particularly the notion that all state power rests on consensus) through their concern to make citizenship practices in the nation-state informed by a public social justice. The essential view of the individual in Hobbes and Locke had been that the individual 'possessed' himself as a being and as a labourer, and would relate to others only according to a calculus which was abstract and selfish. The British social contract theorists even adopted a Cartesian mode of reasoning about human beings in which all others were objects. 30 Contrarily, from Pericles through Solon to Kant and Rousseau, even where the solutions they proposed were inadequate, the notion was that the citizen is a social being and seeks a social, and not solely or simply a personal, good. Interest was always tempered by the need for others with whom an individual must make collective decisions although that individual is different. What was clear to both Rousseau and Kant and those thinkers who came later, was the need to create some sort of civic virtue in the place of what had come naturally to the Greeks. The elements of reciprocity and trust could not simply be referrable to a defence of the private domains. There had to be some commitment in the separate political realm itself and the community there would have to be created, as a fiction, since it did not exist naturally. How did each person in the new modern state 'in a large country' get to feel that they had a stake in that state if some differences in the political realm remained too great? Formal equality among the people was clearly necessary. It could be accompanied by a moral education in the virtues of community commitment to the state. This became the major theme of the nineteenth century, when the practices required for such an education were widely discussed. But the discussion took turns which undermined the emphases
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which were given pride of place in fostering such feeling, and ended in shifting the debate away from an attempt to create a new community which was like that of natural communities writ large. Many of these themes are found in one Anglo-Saxon tradition of discussion about citizenship. This tradition ran through Mill, Bosanquet, Green and, where he intersected with those earlier thinkers, Hobhouse. 31 They all agree that direct democracy must be replaced by some other procedures because the nation-state makes the old communitarian model of citizenship inappropriate. There is little agreement on what exact procedures should be used to replace that tradition but it is true that in nearly all cases the writers favour the representative system. The democratic citizen is thus defined as a person whose primary right is to one vote per head which is exercised through electing representatives to guarantee other rights. These representatives make laws protecting private realms characterised by difference: freedom of conscience, expression, organisation and work. What became wider over the century was the list of the rights, which were increasingly seen as having more than the selfish interest behind them. The new additional rights themselves were needed to secure the autonomous decision-making citizen who would not vacate the public realm in a desire to tend his own personal space. In this their views intersected with contemporary continental European thinkers, who, however, have carried the debate a stage further than the Anglo-Saxons in the second half of the twentieth century. J. S. Mill, who thought that the 'ideally best form of government was representative', took a decidedly Aristotelian view of the qualities needed in the citizen: industry, integrity, justice and prudence. 32 But how was this to be attained? His ideal government, one attended by the greatest amount of beneficial consequences, was 'a popular government'. Yet this could only mean popular participation in politics, and this ran up against the problems of a selfish concern with private matters and an absence from politics that Constant had already noted forty years earlier. Mill was therefore forced to consider the need to provide adequate standards of living for workers. Only through guaranteeing those as rights would the poor be willing and able to participate in deciding on the directions society should take. When he amplified on this theme in his Chapters on Socialism (1879) he merely repeated the views of Francesco de Sanctis (1874). De Sanctis asserted that democracy is inspired by the ideal of a new society 'founded on distributive justice, of equality in law, which, in the more advanced countries, is also equality in fact'. Hence he argued: 'Where there is inequality freedom can be written into the laws, but it is not a real thing, a peasant is not free who depends on the owner, nor a client who is subject to a patron, nor a labourer subject to endless field work'. 33
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Thus, even in Great Britain, there had been identified in the search to attach the citizen to the state, or to create civic virtue in an 'artificial' public realm, the need to guarantee a decent economic and social treatment for all the 'people'. If it did not exist they would not belong to the new 'large modern community'. The logic was impeccable. It was no doubt true that the oppressed minorities could be persuaded to forget in the fabricated amnesia of false curricula in history and language. But this would be doubly difficult to do if such people or minorities lived in vastly different economic conditions from the dominant group(s) or ethnicities. Such problems would be compounded if the weaker were exploited by the conquerors. Sadly, by the end of the nineteenth century this was usually the case throughout the European nation-states. So in the twentieth century the fundamental organising right of the democratic citizen, the right to a vote of equal value, was extended to include rights to economic and social conditions which ensured that that citizen would be able to exercise an autonomous thoughtful choice which characterises the move from formal to real freedom. Its contours became totally clear in the doctrines of social-democracy or liberal-socialism. Liberal-socialism was concerned to guarantee democracy as the political solution which avoided coming to blows. Heads were counted rather than cut off. The viability of democracy was guaranteed by minimum social rights. But the main concern was to avoid the manipulation of people in such a way as to ensure the premise that the citizen-individual should be able to express his or her will democratically. The theoretical task of liberal socialism therefore became to reconcile democracy and liberalism.34 We can call even the insistence that there had to be minimal economic and social conditions guaranteed by the democratic majority a negative solution. What it did was ensure that nobody would refuse to participate because that person felt excluded totally, or was too concerned with economic matters to dare to think in the Kantian mode. To complete this, there had to be more. It too was found in Rousseau and Kant, as they were seen by later left-wing thinkers who saw them as precursors of the young Marx. What they also proposed was a practical education in democracy by having much popular participation in decision-making at all possible levels from that of the commune, to the region, to the state. In some cases there was a variant of direct democracy, whose protagonists, like the Marquis de Sade, were too optimistic even though inspired by an opposition to general norms disposed by the state. But such nostalgia for the Greek world - so obvious in Rousseau should not hide the recognition that such thinkers believed that, through practice, human beings alienated by their experience of others as others, would learn that they shared a common humanity. 35 If
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decisions were taken together and plans made together again and again, a new democratic civic virtue would emerge. Rousseau was undecided whether it could extend further than the borders of the nation-state, but wanted it to be open to all humanity. We can argue, not unjustly, that Rousseau saw France as the vessel for new procedures of democratic action and thus believed that anyone who accepted those procedures would be French: France's role as 'civiliser' was born. As we will see, all his followers subscribed to that view in the first Constitutions of the French Revolution. Starting with Abbe Sieves, they thought that the third estate which should be 'all' when it had been 'nothing' before 1789 would work out its identity in the practice of democratic participation; where party votes were taken 'by the head' of representatives of the mass of citizens belonging to the common order. The fundamentality of this learning through practice was the motif of the French revolutionary left. When the Declaration of the Rights of Man and the Citizen of 1789 stated that all citizens had the right to concur personally, and through their representatives, in the formation of the law it stated in general what the contemporary law on municipalities stated in particular: the 'active' citizens of every town or community may participate in the election of members of the municipal body and 'shall gather'. It also started the practical education which would end forming a joint world. The tradition of learning through practice, so evocative of the young Marx, was transmitted via Antonio Gramsci of 1920 to the earliest of the liberal socialists of 1925, who saw a really democratic world forged among large numbers of men and women by widespread participation in democratic practice. 36 After Rousseau, democracy had been seen as a threat to liberalism, especially by the Anglo-Saxons for whom Rousseau founded the totalitarian tradition. 37 This was not the case with the liberal socialists on the Continent. For example, Norberto Bobbio pointed out as early as the 1950s that, to be capable of exercising an equal voice in a democracy, a citizen had to enjoy freedom of conscience, expression, organisation and refusal to participate. Thus, the famous negative civil liberties were a premise for democracy. On the other hand, democracy was necessary to guarantee the continuation of such rights. Bobbio went further. It was impossible to think of a democratic citizen able to act politically as an individual if that person did not have sufficient freedom from economic want, and sufficient health to address political problems rather than more pressing needs of the stomach. Moreover, it was useless to think of a really democratic vote without a sufficient level of education in the voter. It followed that the line between the public and the private could be drawn with some precision once the option in favour of democracy had been exercised. Any other option was not an ethical option for Bobbio. 38
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As against such theory the apparently similar parallel British tradition about the procedures for ensuring active citizenship was decidedly less satisfactory. After 1950 its foremost exponent was T. H. Marshall, whose books dominated the British and, even more so, the Australian debate when the Continental tradition which we have discussed was completely ignored. Marshall's work, Citizenship and Social Class, epitomises the slides made in the British debate from a political to a sociological definition of citizenship, and thus away from the primary 'active' understanding of the citizen to a passive notion of the latter as a consumer and not a creator of rights. Marshall started from the assumption that the postwar British system was a socialist system. As such it was the culmination of citizenship rather than its antithesis, as had usually been the case argued by the liberals. His argument was that the extension of rights under capitalism, to which we have already adverted, led ultimately to a challenge to social inequality. Where in its negative, pre-democratic period, capitalism allowed and fostered inequality through its stress on the formal equality of contract, in its democratic period when the class monopoly of power had been overturned, the working class had imposed social justice through militant action. This action had created social rights in unions, education and social services disproportionate to measures like market value. While inequality in incomes remained, this was legitimate for the democratic citizenry provided it was not too deep and not hereditary. Most of the criticism within the Anglo-Saxon tradition of Marshall's welfare state theory has focused on his bland assumption that the battle for the relative economic equality had been won once and for all, and that it was therefore no longer necessary to think politically about citizenship once the social battle had been won. Marshall could write: What matters is that there is a general reduction of the concrete substance of civilised life, a general reduction of risk and insecurity, an equalisation between the healthy and the sick, the employed and the unemployed, the old and the active, the bachelor and the father of a large family. Equalisation is not so much between classes as between individuals within a population which is now treated for this purpose as though it were one class ... Equality of status is more important than equality of income ...39.
More recently, David Held joined his criticism to that of J. Barbalet and Bryan Turner,40 by identifying the problems which arise for any definition of citizenship within the nation-state context if that slips into a sociological explanation. The centrality to citizenship of the active political rights as the measure gets lost once the focus shifts on to what a person gets rather than what they do. Citizenship is decidedly not simply or
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primarily about outcomes, or viewing each individual as a consumer. Rather, as the Continental tradition indicated, and this partly explains why it was discovered in the 1980s, the object of the social safety net created by social rights was that it empowered individuals politically, so that they could exercise an autonomous political decision, especially when voting. Indeed, those liberals who wished to return to the conservative version of citizenship argued by Constant, often stressed how much social handouts built a passive, dependent and uncreative population which could not show initiative as citizens who were sovereign. 41 We can understand the development of the welfare state as designed to attach those who were different to the modern state. However, it was concerned only with economic and social difference and thus appropriate or effective only in states where the major difference had become that of capitalist and proletarian, like Great Britain. It neglected ethnic, gender and other differences, more important in other countries. In those countries such differences became the criteria for exclusion. Creating a National Identity
It is important to recapitulate two major developments as the modern state emerged. These two developments are crucial to understanding the 'best practice' for citizenship in the globalising world, as that practice is built on the rejection of one of those developments and also on the extension of the other. The modern state had emerged in various ways. In the oldest of such polities (Britain and France), one feudal lord had gradually extended his dominance over the others, usually in an alliance with an emerging merchant bourgeoisie and therefore as the imposition of one city over all others, notably London and Paris. The resulting absolutisms extended one jurisdiction over all the old, feudal, fragmented jurisdictions, and the former was consequently accompanied by the establishment of a single legal system and centralised monopoly of military force in a definite territory. While the conquered areas were not always ethnically homogeneous, any more than the Greek states had been, the basic characteristic of this extension was the establishment of one state power over several different ethnic groups, with different languages and cultures as well as political systems. Sometimes these had been highly democratic in the Greek directly participatory mode, but more often they had been characterised by feudal social relations based on a complex mode of production in agriculture. What Constant and other writers had noted was the way the differences in life experience of the motley groups who made up the population had made a shared sense of community at anything other than a market level almost impossible. Yet all these different
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groups were clearly subjects of the absolute monarch. To keep them in the fold that monarch could not refrain from doing deals guaranteeing their private individual and sometimes corporate identities. A classic example of this process was that in the Stuart period of British history, when the two ethnically distinct realms of Scotland and England were united under James I, who was also James VI of Scotland. The protracted struggle between the Stuart kings and the English merchant bourgeoisie can be seen in many dimensions but here it is measured by its outcomes in the Petition of Right of 1627, and the Bill of Rights of 1689. Basically these were claims by, and monarchical concessions to, parliament - representing the different interests of the commons - that there would be a rule of law, free elections and that the money to run the realm could only be raised by parliament.42 Equivalent forced concessions were only made in France a hundred years later when the French Revolution initiated a process culminating in the single rule of law under the Code Napoleon. These two histories highlight the tussle between the centralising absolutist state and local difference which lasted over centuries and yet continued anew within the new rules established at each major change. The battle was fought ideologically - in terms of the good - on two levels, both of which were crucial to the understanding of citizenship in the modern state. The citizen/state relationship depends on what sort of state (pre-modern or modern) we look at. In small pre-modern states like the Athenian democracy the principle on which the relationship had rested and the nature of that relationship was, as Aristotle had pointed out, like the obedience children gave to their fathers. It was patriarchal and the consent rested not only on the greater physical strength of the father but on affective family agreement to his clear pre-eminence in knowledge and judgment. So the direct democratic actions in the agora were active only as the actions of part of an organic body are active. The role of the individual citizen was as part of the community, or not active in the sense that he came before the community itself. With the growth of the modern nation-state it became impossible to use the simple family model of authority any longer, as Constant pointed out. The sovereign was too distant physically, and for most of the population, culturally as well, to be thought of as a father except metaphorically. So there was elaborated, for example, by Thomas Hobbes (1588-1679) the materialist theory of absolutism as distinct from its ideological theorisation in the principle of divine right. In the materialist theory of absolutism the puny and even mentally debile monarch held power because the citizens had agreed that he should do so for their benefit. It was evident in reason that their role was at least active at the moment when they putatively agreed to
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come together in a social contract. It was also clear that since it could only be explained as being for their benefit, they would have reserved some rights for themselves, though this was limited by theorists like Thomas Hobbes to the notion that the sovereign could not simply kill them once installed. Obviously, no one would come into a compact of that sort. With Thomas Hobbes there began what is essential to citizenstate relations in modernity, the separation of political from civil life, the famous public—private distinction so crucial to Constant's distinctions. Social or civil life was outside the citizen/state relation from then on. With John Locke's work a little later another question was answered. Why would the initial contract makers not make the rulers accountable to themselves? Clearly, there were two contracts: one to set up the polity or the Constitution, and another which periodically called the rulers to account. Thus there emerged the notion of the need for procedures between citizen and state designed to ensure the accountability of the rulers to the citizens. In time, this would develop into new notions of democracy. Jean-Jacques Rousseau's significance lies in this development which shifted the central issue to what the procedures for democracy might be. 43 What was crucial about social contract theory of the seventeenth century was the notion that political society rested on consensus. It was a political creation and in no sense natural, as the Greeks had thought. The structure of the state remained much the same. This meant that when power, in fact, shifted from an absolute monarch to his parliament in 1689 in Britain, it was conceived of as a shift in sovereignty, or legal right to use coercive power against others. But in the place of the notion that the good, or civic virtue, came from a sort of emotional commitment to those owed such commitment because of blood ties, there was the notion of commitment of equal reasoning beings guided by interest, none of whom were in tutelage one to the other. 44 There is now a vast literature on the notion of trust which ensues which cannot be addressed here. Its thrust can be made clear by contrasting the trust a child has for its other family members based on unconsciously learnt affect just because they are family members, and the trust which rests on the anticipation that all others will fulfil their undertakings which is the underpinning of contract. 45 Put another way, trust in the modern state is based on reason and not on learnt custom or tradition. The political world based on consent to a system by different communities and individuals intent on safeguarding their difference was established as the political good to be attained in the modern state. But, in practice, the modern state only partly broke with the paternal and patriarchal past. It continued religious intolerance. The right of the divine ruler to be obeyed as a father rested on the claim to be the
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anointed of God - the ultimate moral authority. Thus absolutism necessarily imposed the principle that all subjects should be of the same religion. His Most Catholic French Majesty therefore exterminated Protestants with the same fervour as the Tudor monarchs of England exterminated Roman Catholics. The consensual state of 1689 - so beholden to social contract theory in its foundations - unfortunately continued the tradition of cuius regio eius religio, establishing limits to difference and to rights which excluded whole populations of subjects from the ancient freedoms and rights so vaunted by the victors of the Glorious Revolution which ended aspirations to absolutism in Great Britain. There was, thus, an incoherence at the outset in the modern state. It was obliged to recognise that all those born within the state, whatever their ethnic origin or religious persuasion, were subjects of the sovereign and thus of the laws made by representatives elected in free elections, but it also insisted that only certain differences could be tolerated (despite John Locke).46 The list of rights were therefore hardly ever extended until extorted by some minority from the state. The reason was a simple one of management: a state which rested on consensus needed to ensure that its subjects were more or less of one mind. To guarantee too much difference would result in chaos. Difference had to be reconciled with political unity. This provoked a series of decisions to build national identities as it was clear that the new, ethnically and religiously diverse subjects would continually oppose a centralising power, whether it was a king or a parliament, if its goal was uniformity throughout the state. There is now a school of thought about the rise of the nation which relates it to the homogenising and universalising logic of emergence of capitalism and state-wide markets. The major exponent of this sociological thesis of the emergence of the nation was Ernest Gellner.47 Clearly, once the structures of modernising capitalism had been imposed by force, as they were, say, in the Highland clearances of Scotland after Culloden, universal systems of education, health and then social services gradually eliminated difference. In the old nation-states, this initial brutality was buried in the creation of the national myths and in the forgetfulness alluded to by Renan as essential to the everyday plebiscite.48 The best way to ensure this forgetfulness was to destroy the local language and thus the culture which bore the folk memories through song and epic poem, a policy practised ruthlessly by the British in Ireland and Scotland. Nevertheless, once the primitive accumulation stage in the development of the nation had passed, it all seemed to make sense to learn the metropolitan language and mores which made successful capitalist actors, and among linguistic specialists it was noted that attachment to minority Ian-
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guages and dialects and different collective memories died out where there was no 'loyalty'. So contrary to their own logic, liberal, representative systems, even where passingly 'democratic', chose not to extend and defend the rights to difference which were their starting point in practice and theory as the logic of Constant indicated. Even the most radical spokesmen and the stronger defenders of democracy chose the road of homogenisation of the different populations through either force or through education. It was not surprising that this was the solution of Rousseau, who sought to recreate the community of the Greeks on a much higher or more complex realm, that of the nation. Only that way did he believe that selflove (interest) owed to the corruption by the private realm accepted by Constant would be offset by love of self, or a new civic virtue, or social conscience. Commitment to a new, universal civic virtue or religion cast Rousseau's France in the role of the new religious crusader for civilisation against the barbarians committed to a romantic view of past difference. However, it is surprising that the same John Stuart Mill who started his book On Liberty by stating that it was triumph of the democratic regime introduced by Rousseau which made necessary a renewed theory in defence of liberalism, and thus minority rights, later in his career agreed that 'it is in general a necessary condition of free institutions that the boundaries of governments should coincide in the main with those of nationalities'. 49 If we consider the issue closely, it appears that throughout the old nation-states in the seventeenth and eighteenth centuries the main measure of success in this creation of national identity was whether there was sufficient attachment in the population to the territory as a whole to defend it against outsiders or foreigners. In Rousseau, this equation of the citizen with the warrior had deep roots in the Greek tradition for which it was fundamental, as Pericles' celebrated funeral oration made clear. Pericles had proclaimed that what Athenians fought to defend was not only home and hearth, but what was not separate from it, the citizen democracy of their city-state, which was the complement of that happiness: 'the man who can most truly be accounted brave is he who best knows the meaning of what is sweet in life and what is terrible, and goes out undeterred to meet what is to come'. 50 A recent book on citizens and soldiers makes clear that the French revolutionaries took up the Rousseauian equation of republican virtues with military service in the first national (meaning subjects of the French state) conscription. 51 Indeed, a century later the system of national conscription had become an integral part of making the ethnic minorities (who made up most of the 'nation' even then), literate in the national language and aware that a national level above that of their local loyalties existed. Even in the
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United States it became integral not only from the creation of that state as a democracy whose citizens were sovereign, like the French, but as late as 1919 when Woodrow Wilson, the great peace-maker and major protagonist of the League of Nations, stated: A friend of mine made a very poignant remark to me one day. He said: 'Did you ever see a family that hung up a son's yardstick or ledger or spade over the mantelpiece?' But how many of you have seen that lad's rifle, his musket, hung up? Well, why? A musket is a barbarous thing. The spade and the yardstick and the ledger are the symbols of peace and steady business; why not hang them up? Because they do not represent self-sacrifice. They do not glorify you in the same sense that the musket does, because when you took that musket at the call of your country you risked everything and knew you could not get anything. The most that you could do was to come back alive, but after you came back alive there was a halo about you.52 Rousseau's cult of the simple or barbarous is thus very significant. Citizen virtue lies in the simple formula, obvious to Corsicans, that the nation was something one defended like home and family. This was a Greek ethic imported into the building of the nation. Those millions of conscripts who became French, or Italian, or German in the national armies who fought in the First World War, and who in the space of a generation changed from people who spoke only minority languages or dialects into people who spoke an artificial national language, with rules on occasion set in a national academy in the capital, like the French, learnt to be nationals who loved their country like their family, by hating other nationals. 53 This process of making nationals out of different ethnic groups - and crushing the recalcitrant - lasted centuries in the old nation-states of Europe. Thus, when the national collective memory was gradually forged in the process of amnesia described by Renan, it slowly became sedimented as it accorded with the gradual homogenisation of each society into capitalists and proletarians. The first to reach that condition, was, of course, Great Britain, though the French were not far behind. The deliberate fostering of a national myth in ideological history has been amply traced by Ben Anderson and others. 54 It was much less successful in the majority of nation-states which emerged rapidly in Europe in the nineteenth century, and almost impossible in the oppressed empires which those nation-states built up around themselves in the second half of that century. Even in the larger European countries, like Italy and Germany, nation-state unity did not occur until 1860-70. There it was the result of an importation of the Rousseauian idea of the people transformed by romantic notions in the 1830-40 period and held only by the middle classes. Later, when for
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international reasons this middle class established its hegemony, it was over many ethnic groups which it tried to turn into nationals at a rate much faster than that of the older nations. This is a fact often neglected by historians of nationalism who tend to lump all European nation-states together as if they were a category distinct from those of the former empires of the Europeans. In fact, the effect of the rapid creation of most nation-states was that there could be no forgetting due to the lapse of time. In Spain, Italy, Greece, and Germany, it was a person's father who had been killed by the centralising ethnic group, or whose mother had been raped by those of the rival religion. Such experiences took much more forgetting than a slaughter three centuries earlier about matters no longer relevant in a modern world. In those new nationstates, the minorities were often still treated as barbarians - 'more beast than man' as one of Garibaldi's leaders described a Sicilian picciotto. 55 The minority languages and dialects lived on as they were of continuing relevance. 56 Indeed, precisely because international developments prevented many areas from modernising, regional differences remained in economies and societies, and a distinct sense of self remained for each area. The result was a redoubled effort by the central state to make these ever-recalcitrant areas join the nation. In Spain, for example, Basque and Catalan, not to mention Galician minorities, were in a sort of continuous guerilla war with the central government. In Italy the barbaricini were the object of slaughters. Photographic records are reminiscent of genocide in more recent times in Germany. 57 While it can be argued that Fascism was a hiatus in such policies, it was marked throughout Europe, and starting with Italy, by attempts to force modernisation and to compel all citizens to speak the national language by banning the use of minority languages and even dialects (often almost alloglot) in both public and private life. The attempt of such totalitarianisms to forge a national commitment within their states is too well known to need recapitulating. It proceeded by force, indoctrination and manipulation and, above all, by fostering a national collective memory. This was based on a complete falsification of historical records, and the exclusion of all ideas coming from outside the state territory by imposing a rigid censorship. In an era when the early wisdom of the Frankfurt school and of Antonio Gramsci about hegemony and about the continuity between liberalism and fascism has become accepted in the non-radical version of Michel Foucault, it is not necessary to prove too much that the fostering of civic virtue through commitment to the national family was common to the nineteenth century and to Fascism. What needs emphasis is that it could not work because of the forced brutal pace, whose extreme was the Holocaust but
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which, in softer, less horrifying forms, was true of Italy, Spain, Portugal, Greece and other European countries. Its stress on the warrior ethic and forging unity through war cast the other as enemy. In this innovation the projection of ideas to be found in the late eighteenth century took on novel and horrifying forms which made them increasingly difficult to accept. Late in the eighteenth century both Wilhelm von Humboldt and Thomas Jefferson and the other Federalists shared the view that the irreducibility of difference meant the survival of an ethic within the new nation-state of a 'jealous antagonism' among its citizens. However, they also believed that in the market place this could be turned into a fruitful source for creativity. So, if we somewhat cavalierly telescope the ideas of two men from different sides of the Atlantic we read lines like these: 'What man seeks and must pursue ... is variety...'; 'Constitutions cannot be grafted on people like shoots on trees. If time and nature have not prepared the ground it is like tying flowers on them with strings: they wilt in the first midday sun'; or, even more trenchantly, when drawing conclusions from such notions of radical difference 'confidence is everywhere the parent of despotism; free government is founded on jealousy and not in confidence ... it is jealousy and not confidence which prescribes limited constitutions to bind down those whom we are obliged to trust with power'. 58 The vision of difference as that of fruitful antagonism59 becomes, in the view of the leading theoretician of Nazism, Carl Schmitt, a notion of the other as enemy. 60 A powerful realist thinker concerned with the political as it was rather than with pious hopes for peace and harmony, Schmitt, despite attempts to resuscitate his views as a basis for rethinking the 'social' of postmodernity, 61 is of more relevance for us as the logical conclusion of nation-state theories in Fascist totalitarian international relations theory. If politics is a separate autonomous realm, his characterisation of it as based on the friend-enemy differentiation marks an extension of the eighteenth-century private antagonisms into the public, or at least an assertion of symmetry between those realms. 62 This immediately posed the question of what to do about the enemy politically. Since it is in answering this question that the limits of the tolerable were reached his interest lies in his procedures for handling the intolerable, or the enemy. We will return to this issue. The state of which he was a citizen, Nazi Germany, simply chose the way of extermination, and other nation-states in their various ways tried policies of the forced destruction of the other. It was this which provoked a reassessment of the nation- state precisely among those oppressed minorities who usually had adopted that very notion as a solution to their situation. The years between the First and the Second World Wars had been years of a search for self-determination
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for nations without a state. This meant reduplication of the European experience in new areas precisely because even the new nation-states carved out in the postwar settlements of 1919-25 nearly always contained ethnic or religious minorities whose claims for similar treatment went unrequited thereafter. During the Second World War the forces resisting the Leviathan of the nation-state and the Fascist Behemoth brought together their views in a radical critique of the nation-state. It was from this critique that there were born the concrete plans for a supra-national Europe. Typical of the position being developed were those of Altiero Spinelli, later a European commissioner, who wrote a manifesto in 1941 from the exile of Ventotene where he had been confined by Fascism. In the manifesto he wrote that the problem that needed to be solved was that of the final abolition of the division of Europe into sovereign national states. Since the German steamroller had already unified the destinies of the peoples of Europe, people's minds were already much better disposed than in the past to a federal reorganisation of Europe as the harsh experience of the last ten years had opened the eyes of those who did not wish to see and ripened much which was in favour of his ideals. Spinelli believed that proof already existed that no country in Europe could remain in its corner while the others fought, since declarations of neutrality and non-combatant status had no value. He felt that Europeans must, from now on, establish the basis for a movement capable of mobilising all these forces and which is able to give birth to a new organisation which will be the greatest and most innovative creation undertaken in Europe for centuries: which having the goal of making a solid federal state which has a European army - in place of national armies - will break decisively away from economic autarchies, which are the backbone of totalitarian regimes. Europe would have sufficient organs and means to carry out in the different federal states, its own deliberations tending to the maintenance of common order, while leaving to the said states the autonomy necessary to a supple articulation and to the conduct of a political life which was in conformity with the particular characteristics of different peoples. 63 Definition of Citizenship Consequent on the drive to make the modern state through repression of differences, two distinct criteria for admission to citizen rights emerged. Both preceded the creation of manhood suffrage, again a French revolutionary innovation which the British only attained in 1884. In some countries, notably Germany after its unification, the myth that the nation had grown from a single ethnic group united by blood ties
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was retained in the face of all historical evidence to the contrary. There continued the ius sanguinis which established legally that only those of German 'race' or their descendants could ever have German citizenship rights. No one who could not establish by going backwards in a family a continuity of Germans up to several generations could ever become a German citizen. The number of generations changed but the principle has remained the same to this day. Most other European countries gradually moved away from such a view. The French law on Nationality of 1889 - which still rules - combined the ius sanguinis with the ius soli, that is, made it legal for those born on French soil of foreign forebears to become French citizens. This, as the seven-year debate preceding the laws's adoption made clear, was because of the large immigration into France of foreigners, often refugees. It is notable, however, that the big industrialists supported it because in the situation of free trade which existed they needed free movement of labour to maintain production levels.64 The country which adopted the ius soli totally was Great Britain. The history of the development of that law is an essential part of any book about Australian citizenship since the formal rules of Australian citizenship grow out of it. The English faced the problem of who was a subject of the king when the realms of England and Scotland were united. It was essential to establish this to decide whose laws were applicable in the myriad activities of private life, especially those concerning inheritance and property. So in Calvin's case (1608), a test case, the legal formal rules for the future were set both for those born before and after 1608. A piece of land was bought for the child Robert Calvin, born in Edinburgh in 1605. An action was then brought by him against two others who had supposedly colluded to deprive him of the land. What was really at stake was whether he could bring the action. This would have been impossible if he was regarded as an alien and not automatically naturalised by being born within the realm. Twelve of the fourteen judges held that he was not an alien. Thenceforth, anyone born on British soil had British nationality regardless of where his parents came from. This left the problem of those people who had not been born on British soil nor born of British parents elsewhere who wanted to naturalise. The Act of Settlement of 1701-2 expressly excluded them from holding office or election to parliament, and thus from full citizenship rights. This continued older discrimination which could only be overcome by regal Letters Patent in an Act of Parliament making an alien naturalised. After James I came to power this required swearing an oath of allegiance before parliament and taking the sacrament. Throughout the eighteenth century when Acts were passed to allow foreign Protestants or Jews (1753) to become naturalised automatically without those oaths of loyalty to king and
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church they were repealed due to popular opposition. In 1793 the fear of contamination of the ideas of the French Revolution led to an Aliens Act which placed all foreigners under strict surveillance. Only in 1825-26 were the various restrictions removed. In 1844 aliens could be naturalised under the Hutt Act, acquiring all the rights of British citizens except those of election to parliament or membership of the Privy Council by swearing allegiance and obtaining a certificate from the Home Secretary. Finally, in 1870 the Naturalisation Act was passed. Its substance was that the rules in Calvin's case concerning aliens were superseded. A near-contemporary text states: Under the existing law an alien may take, acquire, hold and dispose of real and personal property in the United Kingdom, of every description (except British ships) in the same manner in all respects as a natural-born British subject, but without the right to any office, or franchise, municipal, parliamentary or other; and on obtaining a certificate of naturalisation from one of His Majesty's Principal Secretaries of State, he becomes entitled, in the United Kingdom, to all political and other rights and privileges, and subject to all the obligations, of a natural-born subject. It also provided that a natural-born subject may become a 'statutory alien', by being voluntarily naturalised in a Foreign State, and may again acquire British nationality by permission of a Secretary of State.65
It is quite clear in the case of the states where citizenship depended on the prior ius sanguinis that the first requirement for that status was that a person belong to the ethno-nation. This would ensure common life-experience, culture and attitudes expressed through a common language. In turn, this identity would guarantee the civic commitment required for citizenship. It should not lead us to think that the ius soli was any different in substance in its demand for a prior national commitment. Clearly, being born on the soil of the state, whatever the parental origins were, ensured in practically all cases an assimilation to language and culture no different from that of others whose parents were also nationals, and no different from that in most German citizens. Moreover, until a country became a place of immigration the problem of large numbers of people with foreign affects naturalising without really feeling they belonged to the nation would not arise. In 1870 this was still the case in the United Kingdom, although it was changing. The premise for citizenship was still proof of belonging to the nation, of having assumed its language and thus access to its culture, whatever the law concerning nationality. It cannot be gainsaid, however, that the ius soli of Britain and British possessions was a much more inclusive citizenship rule than that of the Germans and more appropriate to a world in which there was ever more migration, especially to lands of new settlement.
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43
Both of these notions of citizenship had been evolved before the ideal of the nation-state had first become the rallying cry in the battle of Valmy during the French Revolution. The ius sanguinis was totally exclusive since it allowed no foreigner ever to become a national or a citizen. The ius soli was much more open since the children of a foreigner could become nationals and citizens. This allowed the evolution of denization rules. It also highlighted the fact that some rules of exclusion are less rigid than others - some borders are porous, others are not. This is very important as it allows the discussion to shift from the circular argument that both nationality and citizenship logically require the prior notion of a state and a community and therefore must rest on an inclusion/ exclusion premise, to a position which concedes that logical reality but argues that what is important is the nature of the rules themselves. These can be either less or more open. Broadly, any rule which uses terms like blood, family, natural community, has tended to be more exclusive than one which uses terms like birthplace, political commitment and republic. These terms are like markers showing the real rules of exclusion. Of course, the more exclusive, the tendentially less democratic. It is notable, therefore, that the first two French Constitutions in which were denned for the first time citizenship in a nation-state (up to that time only matters of theory or petition, in the period of idealist search for a definition which was democratic) proposed certain rules. That of 1791 is more restrictive. It contains this definition of a citizen of a nation-state and how a foreigner can become a citizen: Those born in France of a French father; Those who, born in France of a foreign father, have established their residence in the kingdom; Those who born in a foreign country of a French father, have established themselves in France and have taken the civic oath; Finally, those who, born in a foreign country and descended in any degree from a French man or French woman expatriated because of religion, come to reside in France and take the civic oath: Those, who, born outside the kingdom, of foreign parents, reside in France become French citizens after five years of continuous domicile in the kingdom, if, in addition, they have acquired real estate, married a French woman, or founded an agricultural or commercial establishment, and if they have taken the civic oath. The legislative power may, for important reasons, bestow naturalisation upon a foreigner, without other qualifications than the establishment of a domicile in France and taking the civic oath therein. The
civic oath is: I swear to be faithful to the nation, to the law, and to the King, and to maintain with all my power the Constitution of the kingdom, decreed by the National Constituent Assembly in the years 1789, 1790 and 1791.
The rules in the very nationalistic 1793 Constitution are even more striking in their openness to foreigners as, in addition to adopting the ius soli, they allow all foreigners who have lived a year in France, and 'lives there
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by his labor, or acquires property, or marries a French woman, or adopts a child, or maintains an old man, (or is considered) by the legislative body to have deserved well of humanity' to have full rights of citizenship. Since this was practically citizenship at will where foreigners wanted it, it is striking in its advance. Indeed, the debate around these Constitutions advanced all the propositions now advanced by the most progressive theorists in this domain today. Most notable was the insistence that the Declaration of the Rights of Man and the Citizen come before the passing of the Constitution to establish popular sovereignty as the foundation of rights and rights as the foundation of law. Although not always adopted, especially those for the social safety net, they indicate what standards already existed for nation-states 200 years ago. The diminution of the nationality requirement in the 1793 Constitution in favour of a simple automatic grant after minimal residence periods and participation in social life shows what was then thought to be consistent with Rousseauian principles. It also shows how rules can make borders almost completely irrelevant. 66
CHAPTER 2
From Subject to Citizen I: to 1948
The man can naturalise the woman but the woman cannot naturalise the man.
Senator J. G. Drake, Parliament House, Canberra 1903
'Alien' means a person who is not a British subject, an Irish citizen, or a protected person.
Australian Nationality and Citizenship Act, 1948
Once viewed in the context of the developments in the understanding of citizenship traced in the first chapter, we can see that any history of Australian citizenship can have very little to do with the Greek model. The emphasis of present government policy on the notion of civic virtue in that model as a guide to reactivating citizenship in Australia is thus misplaced.1 What is clearly of great significance for understanding Australian citizenship has been the development of a citizenship, appropriate to the context of a nation-state, since for a hundred years Australian policy-makers have sought to build a nation-state here. The new challenge for 2001 is to square what has been created here with the requirements for a citizen appropriate to future regional economies in a global world. That will be a considerable task as Australian history was bizarrely like those of the late-comers in nation-state Europe. Here, until 1982 the state attempted to impose on a widely diverse set of ethnic groups a single identity based on a partial collective memory. Increasingly, this has meant less and less to large sections of the population. From its first formal statement of what it is to be a citizen in Australia, the Australian state has made it clear that its primary concern was to establish in a country of immigration that the newcomers show clearly that they have adopted a national identity, that they have joined the 45
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national family of British descent. Only once that test of inclusion is passed do such people gain entitlement to the citizen rights in the Constitution. These are certainly citizen rights of participation. Later, we will discuss how far they are democratic citizen rights. Proof of belonging comes first. As the 1948 law on Nationality and Citizenship states it comes from: 1 being born to an Australian father; 2 to someone who is registered as a citizen which for Britons and Irish means that they have resided here five years; are of good character; have an adequate knowledge of English (or have resided in Papua New Guinea for not less than twenty years); have an 'adequate knowledge of the responsibilities and privileges of Australian citizenship' and intend to reside in Australia or work for an Australian company or the state (s. 12); or 3 by naturalisation, if an alien, which requires all the above or to have resided one year and/or served four in the government of Australia, and to have applied, and been accepted, on the swearing of an oath of allegiance to the monarch of Great Britain. A-M. Jordens has commented that all Australians, including the officers of the Department of Immigration, had no conception of what being an Australian citizen as distinct from being a British subject actually meant. Citizenship was conceptualised in relation to British culture and ethnicity, not in terms of the rights and responsibilities of citizens of the state. 'This ultimately normative concept of citizenship was clearly reflected in the definition of "alien" embodied in the Act. A nation's understanding of itself is revealed by the categories of people it regards as foreign, alien, and "other". From 1948-1987 Australia's citizenship legislation defined an alien as "a person who does not have the status of British subject and is not an Irish citizen or a protected person".' The image of Australians enshrined in the Act, therefore, was that of an Anglo-Celtic people. 2 The entire history of British subjects in Australia before 1948 led to this formulation and left Australians with abiding limitations on what acts of citizenship such British traditions of the good could allow. This point becomes sharper when we remember that the first formulation of modern citizenship was made in the French revolutionary Constitution of 1791 and is in blatant contradiction to British political traditions. 3 As Britons, the men and women who started to conquer the Australian continent from its traditional owners in 1788 certainly had, prima facie, the legal rights of Britons, subjects of the monarch. They were the heirs to the patrimony of the common law in so far as it was applicable to a
FROM SUBJECT TO CITIZEN I: TO 1948
47
colony like Australia. Practically, this meant that they were entitled to those rights concerning British nationality and citizenship described in chapter 1 which the courts decided were applicable here. Besides that formal limitation, they, or some of them, were citizens from the beginning as they operated in a state which, while it was legally 'the most remote portion of Britain', also evolved its own rules and procedures in a new environment. Indeed, local inhabitants learnt their roles as citizens or non-citizens within that state regardless of formal written rules or a Constitution. Following Aristotle's observation that states are compounds of citizens, we may say that where there is a state there are citizens, and there is only Australia because there is a state here. 4 Bearing in mind the tripartite identification of citizens by their acts; the context, and most importantly, who is deemed to belong to that context, the history of the nineteenth-century Australian colonies can be read as an attempt to create a modern state with its citizenry. It is legitimate to see the construction of that state as one of the purest and most successful examples of hegemonic modern state building, but only bizarre lessons in civics could be learnt for that very reason. The bulk of its inhabitants until 1840 were convicts and therefore civil nullities. The state could logically only be a despotism and the only participants in law-making were therefore the tiny elite of the despot and his courtiers. Before 1840 Australia's citizenry was only a tiny proportion of the population. In 1848-55 manhood suffrage and representative government were grafted on to this past and its structures. Thereafter the colonies resembled superficially the model of Constant, with proxy rule in a centralised state by representatives in local parliaments. These innovations did not, however, mark the establishment of liberal democracy in Australia, as the despotic past weighed heavily on the present. 5 F. A. Bland, a leading conservative theorist of liberal democracy and citizenship, writing half a century ago, summed up the reality thus: For not only did the authorities [before 1850] completely control the human and physical resources of the colony but there was also the most intimate control over thought and action. Religion, the family, the press, the schools, and public and individual conduct all came under official surveillance. Resistance to control of mental and spiritual matters brought relief, but resort to and dependence on the State by the individual for material things developed apace for nearly sixty years. The repudiation of individual responsibility for local government or education, for example, and the insistence that the State should defray the costs of these services, illustrate the effects of these early habits, and go far to explain some of the traits of our national character which are sometimes puzzling to outsiders. and on the state side of the coin:
48
FROM SUBJECT TO CITIZEN: 1901-1996 officials tend to develop certain attitudes towards citizens which are highly dangerous. That is to say, the citizen becomes obscured, and reappears as taxpayer, patient, prisoner, depositor, taxi-driver and so on, without a personality other than that with which a pile of official papers can endow him. Sometimes this is characterised, although wrongly, as the New Despotism. In such an atmosphere, is it surprising that officials should sometimes carry over to the province of individual thought and conduct and belief, the paternal, or, if you will, the autocratic outlook which they develop when engaged in regulating street traffic, house-building, health inspection, and gaol inmates, or that the citizen, accustomed, either at his own behest, or otherwise, to being educated, investigated, regulated and co-ordinated, should fail to appreciate the distinction between government control of his material affairs, and government interference with the books he wishes to read, and plays he wishes to see, and the meetings he wishes to attend.6
Bland's claim that the early near-totalitarianism ended real popular sovereignty in Australia is certainly born out in 1860-1900 in the following ways. In those years Australia was renowned for the malapportionment and gerrymanders of its electorates, making the suffrage laughable both to those exercising and those observing it. Women did not have the vote until South Australia introduced that measure in 1893. When this was compounded by the absence of full responsible government both in the parliaments and to the electors, control from below did not exist. The Executive and the administration certainly appeared unaccountable to control 'from below'. The result was political absenteeism except at elections where corruption was rife. Rousseau's felicitous remark that representative government made the electors slaves between elections was certainly subjectively true in the Australian colonies. The absence of strong democratic local government, with municipal control of police and education, meant that the criterion of more democracy in more places was not met either. Poor electoral participation was evidence of a populace concerned with its selfish private interests, a situation which the European writers had predicted. The consequent role of mediating private associations like trade unions became especially strong. It is arguable that the introduction of the first forms of the social safety net at the end of the century was intended to buy a disaffected citizenry, deeply hostile to the offices of state, into civic participation of the sort Mill had auspicated in his Chapters on Socialism. Parliamentary debates early in the twentieth century make much of the attractiveness of a common citizenship rule in fostering support for a Federation.7 It is no answer to such criticism to point out that democracy was little different elsewhere - even in England - at the time, or that the parliament and not the people is formally sovereign in Britain as well. In some countries, notably France, the situation was already much more
FROM SUBJECT TO CITIZEN I: TO 1948
49
democratic and the choice of Britain as a model for comparison thus was primarily due to ethnocentrism. The partial justification for the reference to the British model as the only possible guide for Australia on the grounds of the ethnic homogeneity of the colonies at the time hides a complication. It is true that in 1901 the white population was almost entirely from Britain and Ireland. Those people from elsewhere in Europe totalled 7.78 per cent and others a tiny 1 per cent.8 When the main protagonist of Federation spoke of the 'crimson thread which unites us all', his words were truer than they would have been in 1830 or would be in 1950. Australia was an Englishspeaking country with an obviously British culture. But it was more than this. It was a continent conquered by whites and this started successive waves of migration. These migrants came speaking different languages, mostly English and Gaelic, and brought different religions and cultural traditions. Just like the nation-states of Europe, the Australian state pursued a policy of homogenisation of such newcomers (as well as the original inhabitants of the continent) to the point of exterminating those Aborigines who resisted. The rest were expelled and Asian entry restricted. The most obvious victim in the nineteenth century was the Irish Catholic minority. It was a bitter battle but it was won by the state if we measure success by the elimination of the most distinctive marker of difference after skin colour - language.9 Gaelic disappeared as a spoken language within a generation. So A-M. Jordens is accurate when she lumps Anglo and Celtic together in a discussion of citizenship. In Australia, the homogenisation was achieved but on a time scale too short for old ways to be completely forgotten. Australian national identity therefore remained weak and contradictory, and the adhesion to British civic and political traditions was offset by a republicanism played in minor key. The famous Jerilderie letter of Ned Kelly makes clear the relative failure to create a collective memory based on a common enemy, which was so important to the nation-building projects of Europeans: a policeman is a disgrace to his country ... he is a traitor to his country ancestors and religion as they were all Catholics before the Saxons and Cranmore yoke held sway since they were persecuted, massacred, thrown into martyrdom and tortured beyond the ideas of the present generation ... What would England do if America declared war and hoisted a green flag as it is all Irishmen that has got command of her armies forts and batteries even her very lifeguards and beef tasters are Irish would they not slew around and fight her with her own arms for the sake of the colour they dare not wear for years and to reinstate it and rise old Erin's isle once more from the pressure and tyrannism of the English yoke which has kept it in poverty and starvation and caused them to wear the enemy's coat. What else can England expect.10
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The reference to America is notable. It was both a constant reference point for Australian republicans, and a standard for democratic civic traditions understood as the antithesis of the British constitutionalism which conservatives extolled in the Australian colonies. Nevertheless, it is correct that the fervour of the sort of views expressed by Ned Kelly had died down by the twentieth century as the Australian state affirmed its hegemony through repression and then national education. Another Celtic republican revealed a new style in recollections of his Uncle Johnny in 1919. That uncle was the descendant of a Fenian transported in days when the English were intent on stamping out difference in Great Britain: the motivations of these citizen-soldiers were too complex, too colonial and nationalist at the same time for anyone, barefaced in the twentieth century, to be able to say with confidence these holy dead who are commemorated every evening in the RSL clubs in Australia, when the lights go down and the lamp of remembrance is lit, were in sole and final essence dying for the Crown. What many of them were doing, however, was pledging themselves to an Australian destiny under the aegis of Britain, and in the terms of the period, this was a credible thing to do.11 One effect of this hegemonic success of British standards in 1901 was the beginning for some sixty-two years of 'a long silence' on the Republic, understood either as independence from Britain or as the adoption of American norms of citizenship and politics in the new Commonwealth of Australia. 12 This long silence was marked by a lack of concern with what had inspired the first republicans here, that the 'people' should be made sovereign through a democratic vote and that an Australian sense of the good should be developed in the democratic debates which preceded the exercise of such a vote. The Commonwealth of Australia Thus, in the Australian colonies a basically passive population of subjects had been created. They had only a weak sense of what they stood for politically as a 'people'. It was usually that they wished to be 'more British than the British'. Even the Celts were infected by some ambiguity about how far they refused that notion. It was this 'people' who supposedly made the federal Constitution of the Commonwealth of Australia, which became the foundation of the rule of laws in Australia thereafter. It still governs all our activities as citizens. As Aristotle noted, it could only be a compound of its citizens, or reflect their civic culture, like all Constitutions.
FROM SUBJECT TO CITIZEN I: TO 1948
51
It met the first requirement for a Constitution in a modern polity. It was a written Constitution to which final reference could be made in a dispute about which policies the citizenry, understood as parties to the social contract, had agreed were in the public domain. Equally clearly, as the product of a passive citizenry which did not in fact agree as an active majority to its terms, it did not make that citizenry formally sovereign. It did not enshrine the basic rule of a democracy: the principle of a vote of equal value or control of the legislature and other organs of state by the sovereign people. Nor did it contain any definition of what it is to be a citizen despite discussion at the Conventions at which it was drafted about the advisability of including that definition. It contains no bill of rights, despite the fact that such rights are the cornerstone of 'modern liberties'. Only five sections: 92, 116, 117, 51 (xxxi) and 80 guarantee some of the absolutely essential rights needed for a democratic exercise of the vote. Section 92 guarantees absolute freedom of trade, commerce and intercourse throughout the Commonwealth. Section 117 ensures that all subjects of the monarch will be treated equally no matter where they reside in the Commonwealth. Together, the sections add up to complete freedom of movement of subjects throughout the territory of the Australian state. In view of the literature about such freedom as the foundation of a national citizenship in a Federation made up of pre-existing States, it is quite important. Section 116 guarantees freedom of religion. Section 51 (xxxi) guarantees property rights since even the state cannot take property away from an individual without paying a fair compensation when it does so. Finally, s. 80 guarantees trial by jury, a basic tenet in any rule of law.13 How limited in scope these rights are can be gauged by comparing them with the 1791 Constitution of the French Republic, which contained the first formal statement of what it is to be a democratic citizen in a modern 'large-scale' state. The first of these is the key right to a vote of equal value with all other citizens, and an express recognition that the people are sovereign. The second is a list of rights including freedom of conscience, speech, organisation and property. These had become normal in twentieth-century Constitutions, or added piecemeal in older documents like the Constitution of the United States of America. The limited defence of rights in the Constitution reflected the belief of the founding fathers - which was undeniably shared by the minority of active middle-class citizens who had voted in favour of the Constitution at referenda - that British traditions of common law and responsible government would be sufficient to protect individual liberties. Legally, this was a view of rights as private matters possessed by individuals, which had corollary duties, rather than the Rousseauian/Kantian
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view of rights as public and as the foundation of duties. Necessarily, it also denied popular sovereignty, since the monarch-in-parliament had always been legally sovereign in Britain. 14 The Constitution did not address the issue of minorities in any direct way except by declaring that Aborigines were not to be counted as part of Australia's population for political purposes (s. 127). No minority, not even women, were involved as such in the drafting of the document. The Constitution was thus an ethnocentric and male-gendered document. Moreover, it tells us little about what active role a citizen is expected to play in the Australian state. In political matters, especially the key right to vote, it continues the practices of the former colonies. As we have pointed out, these tended to make individuals more and more absent from politics. It guaranteed only very few of the private rights necessary to autonomous political decision-making by individuals. The one notable exception to this generalisation is what is embodied in s. 51 (xxxv) which enabled a conciliation and arbitration system to be set up for industrial disputes which existed in more than one State. This would allow the creation of a minimum wage and thus the beginning of the social safety net. In chapter 1 it was shown that liberal-socialist theories of citizenship had made clear that freedom from economic and social want were essential preliminaries even to freedom of conscience, and autonomous political decision-making. While limited to 'workers', and this meant discrimination against 'non-workers' like housewives and the self-employed, it did mean that from 1907 onwards Australian workers did not have reason to be as concerned about economic and social needs as their European counterparts. It was not impossible for them to exercise and participate in political judgment and to evolve some idea of a national good. The Australian People One founding father, Isaac Isaacs, had expressed the hope in Convention debate that: 'We want a people's Constitution, not a lawyers' Constitution'. The Constitution preamble itself starts 'whereas the people ... have agreed to unite in one indissoluble Federal Commonwealth'. Yet there are few grounds for asserting that the 'people then determined that Australia would become a Federal Commonwealth ... our system of government goes further than popular referendums and elections. It safeguards democracy in institutions, procedures and values whereby the people are invested with civic rights and responsibilities. The people are citizens'. 15 Such an assertion only obfuscates if it leads to the belief that a majority of colonial citizens voted for the Constitution, or that they were forthwith formally citizens. Both statements are incorrect factually,
FROM SUBJECT TO CITIZEN I: TO 1948
53
but it shows how necessary the idea of 'people' is as an artificial and ideological notion, created, as Rousseau originally intended, to provide a community where no such nation naturally existed, even if only as a myth created to occlude real difference and antagonism between private communities. The mode of its creation is nevertheless important in explaining the limits it established about who could belong to the national family, as it establishes what they must accept as 'good' whatever they believed earlier. We have already made the point that this construction of the people can be done two ways. The first is through the creation of a civic culture which arises from participation in a number of citizen procedures. In itself, this is probably the best way to mould unity in difference, provided the procedures are themselves a product of the practice and not imported. The participants learn a commonalty in the practice of working together. Such a national identity - a projective, forward-looking identity - is what Barber, Miller and Kukathas argue for when they maintain that the notion of nation-state is not completely bad. Its possibilities in a supra-national system are considerable, as Habermas has pointed out. But there is also a second way of constructing a people, that of seeking for their essential identity as it developed through history, through the fostering of the collective memory or myth of a growing organic unity where once there was difference. It consists of discovering 'who we really are'. Just as the first construction is, by definition, democratic and forever open, the second is aristocratic and forever makes closures. The notion of the people created in the nineteenth century was a composite of both. Henry Lawson wrote in 1891: Lo, the Gods of Vice and Mammon from their pinnacles are hurled, By the workers' new religion, which is oldest in the world; And the earth will feel her children treading firmly on the sod, For the triumph of the People is the victory of God ... Mother Earth in coming seasons, shall fulfil her motherhood, Then the children of her bosom never more shall want for food, And oppression shall no longer grind the people iron shod, For the lifted' hand of Labor is the upraised hand of God.
Here we have in clarion-clear form what had become, and would be, a continuing theme in Australian history: the conceptual confusion of the people and labour or the working classes in political and literary discourse. It is a confusion which started with the birth of the labour movement itself in the 1840s in New South Wales. The titles of the two newspapers of the nascent working-class organisation of that time are
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indicative of this confusion: Star and Working Man's Guardian and the People's Advocate. It was a confusion which reflected that in the British Chartist movement to which many of the early trade union and workingclass leaders looked for inspiration. Certainly the notion of the people predates the 1840s. It is, for example, central to the themes of W. C. Wentworth's famous book on the historical development of New South Wales of 1819 and is the term to which the banner of the newspaper the Australian is attached some five years later. Perhaps some antiquarian could supply us with even earlier uses of the notion of the Australian people. That is, however, immaterial. Rather, we focus on the use of the term: its confusion with other concepts of greater clarity; and, in particular, on its effects in determining a particular style in Australian politics. Already, in the 1840s the leaders of the emergent trade associations of Sydney town were confusing the notions of people and working class. Robert Lowe, speaking in protest against the renewal of transportation or the arrival of the Hashemy (the convict ship), quickly made clear that the rights of the 'labouring classes' were not merely corporate but 'universal', a theme which Lawson picked up in his poem 'Triumph of the People'. There is, indeed, a strongly progressive element in such an assertion. Unfortunately, complications set in with the further definition of what was 'universal' as the liberties of Englishmen and the ancient rights of Englishmen. The labouring classes of Australia were having goals set for them in the 1850s by their earliest leaders usually of petitbourgeois or middle-class provenance which corresponded with those demanded by Wentworth thirty years earlier, and Wentworth was now the leader of the conservatives and soon to voice demands for a bunyip aristocracy. For example, Henry Parkes, another leader of the nascent working class, thundered his speech against transportation: 'We met here on last Monday to raise voices against a grievous act of injustice, with the heavens weeping for calamity; we are assembled here today to assert the spirit of British free men in demanding those rights to which we are entitled by birth, and the Australian heavens smile and rejoice'. Parkes full knew what it meant to define such rights in Australia. It made the Australian people, as he put it, conservative bearers of the rights of Englishmen. Here it is necessary to emphasise what was implicit in this admission. It was already clear in the 1840s that the notion of 'working class' was being confused with that of the 'people' understood in some English sense. There were, however, two quite distinct popular traditions in England. The first went back via the Babouvist Harney to Paine, and the diggers and ultimately to Wat Tyler. It was decidedly radical and not overly chauvinistic. The second went back through Burke to Locke and thence to Magna Carta. It was basically conservative and rather nationalistic. In
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the first, the ingredients of politics and history were much biased in favour of primacy of politics, and in the second, that bias was reversed. It very quickly became clear in the 1850s and 1860s that it was the second notion of the people endorsed by Parkes' Empire which would prevail. Predisposing the notion of people in that direction was the earlier history of New South Wales in which the despotic power of the Governors had really only been curtailed by the gradual establishment of legal restraints associated with men like the Bents. Moreover, the clamour for jury trial in the 1820s and the demand for guarantees of rights to person and property had resulted in a particular understanding of 'natural rights' or justice. These had been understood as coterminous with the limited notions of English law that no one should be the judge of his own cause and that everyone should be able to put his own case. Around such demands had been fought the campaigns for the 1823 and 1828 New South Wales Acts establishing the legal system. In the 1850s with the gold rushes, this disposition of the colonial state became ever clearer, notwithstanding the Eureka Stockade. From Ian Turner to Geoffrey Serle, the historians make clear that the consensus on the goldfields was really built around the positions of the various people's Conventions, which asked for the rights of Englishmen, and saw Governor Hotham as a despot renascent. In Miners Right, published in 1880 but really describing the typical miners of the 1860s and 1870s, Rolf Boldrewood wrote: 'All knew what they had to expect. The administration of justice was entirely impartial, and the law was backed up by the whole force, genuine diggers. They know full well - being, perhaps, the most intelligent, experienced and, so to speak, cultured class of ouvriers in the world that strong arm of the law would only be weakened to the detriment of the whole society'. The Selection Acts confirmed this orientation in favour of the conservative populist tradition of England and against the radical, so that the cry was heard that it was a rich man's country, yet the style of politics here had become entrenched. This style revealed itself as legalism. By legalism is understood the recourse to the law and the courts, to resolve issues about citizens' rights, individual political rights. The point is not that the courts themselves asserted the right, as they most certainly did, but that the citizens and the working class itself accepted and endorsed this approach. The fundamental effect was to shift the determination of what rights did, and whether they should exist individually and socially in our society, from the popular or democratic arena to that of the courts. As Coke had told James I in a celebrated debate in 1612, in the courts only those privy to ancient and artificial reason were entitled to make judgments and the
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natural reason inherent in every man had no place. The first quite clear expression of this style came in the late 1880s and the early 1890s. In this period, William Lane made clear that the notions of class analysis already providing guides to action elsewhere by the working class had no place here. The most striking illustration of this came in his deletion of all reference to the class struggle and all condemnation of utopianism from the first edition of the Communist Manifesto to be published in Australia. Michael Wilding, in his Paraguayan Experiment, captures the essence of Lane's views when he has him say that millenarianism is the expression of the oppressed and that is what the labour movement has sprung from. The Australian labour movement was born in a climate of national popularism whose views have acted as blinkers ever since. The theme of the people in its radical form, represented by Lane, was again worsted in the 1890s and the conservative view was left behind to triumph. We might say that in the face of the criticisms of Tocsin the leaders, still including Parkes, pushed through the federal Constitution by the use of people's Conventions. These people's Conventions, though in no way representing a cross-section of popular opinion, gave a supposedly consensual endorsement to the federal Constitution, thus insulating it from the criticisms directed against the colonial Constitutions. Just as the leaders and spokesmen for the movements of the 1840s had been lawyers, so Dr Quick and Robert Garran both belonged to the legal profession. The real triumph of the founding fathers was the adoption of s. 51 (xxxv) of the new Constitution, giving the Commonwealth power over industrial disputes extending beyond any one State. This effectively put the major issue of social rights on a national scale - the relations between capital and labour - into the hands of a court. Though it was originally intended that this should be a court, so to speak, without lawyers and legal jargon, it rapidly became clear that this would not be the case. Indeed, as we read the early cases like the Municipalities, Journalists, and Schoolteachers cases, we are privy to the triumph of legalism over common sense in what is, in fact, an unfair contest between the platitudes of Webster's International Dictionary and centuries of acquired sophistication in legal reasoning. What, then, was the effect of making 'working class' mean 'people' and 'people' mean 'English people', and their rights, the timeimmemorial rights of English men? What, in other words, was the effect of putting the decisions about social and individual rights in the hands of lawyers and judges to the point that they had the last, and an unaccountable say? It greatly circumscribed rights, excluding all those unknown to English law. The groups who suffered most to begin with
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were the Aborigines and the Irish, two of the nomadic tribes which the local governments wished to control. The Aborigines were deliberately treated as if they were incoming migrants moving on to uninhabited soil already occupied by British settlers. As such, they had no rights that were not recognised in English law, and their legal systems were regarded as irrelevant, although in the now celebrated Congo Murrell case they were regarded as subject to English law. The Irish were also regarded as having no rights, other than those ascribed to them by British law. Ned Kelly's Jerilderie Letter which sought to assert a radical notion of popular rights outside the rights of Englishmen, was dismissed as madness to popular approval. In the nineteenth century citizens of other ethno-states were not,, of course, shamefully treated as groups because they did not exist in notable numbers. It is important to realise that they too - unlike the supposedly primitive Aborigines and Irish - fell victims to the same provincial quality of English law. There were, for example, the leading cases of Valentine and Levinger, which made clear that the only rights they could claim were those recognised by our courts. The basic theme that the only rights which the courts would recognise were those time-honoured British rights, which the legal fraternity openly boasted were better than anything produced on the Continent by the civil law, led however, to a second and much worse consequence. Whereas in Britain, according to a time-honoured rule recited by Blackstone that the king was above the law, the courts would not supervise or oversee the activities of the elected governments, and always subordinated themselves to the will of the king and parliament, here it was established early that as the colonial Constitutions and then the Commonwealth were created under Imperial Statutes, the court would oversee the activities of parliament itself for legality. For example, in a series of famous decisions starting with that of Alcockv. Fergie and culminating in Ah Toy v. Musgrove, it was decided by 1888 that there was no responsible government in Victoria. While lawyers might argue that that was not binding for other colonies, in fact it did highlight what the trend was elsewhere as well. To reach such conclusions about the Constitutions (which still are those of the States), had this effect. The courts had decided that there was no effective separate political space in Australia. All politics were subject to the law courts. In England, an aggrieved citizen might, through political action, have an Act passed in parliament which the court would simply obey, but here the courts would then decide whether any such Act was valid - and they have done so ever since. There was yet a third effect of placing the last say in the hands of the courts that was even more deleterious than those of excluding all notions of rights not already enshrined in a particular legal tradition;
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and excluding the paramountcy of the political recognised even in such a tradition as a birthright. This third effect was that it excluded all consideration of any system of rights based in natural law theory ofjustice or its successors. The common law system has been felicitously described as the court and the writs. It was a system based on the authority of judges and the observance of certain procedure. For such a system thejurisprudential notion that sovereignty was based on command and not consensus was particularly palatable, and found its expression in the works of J. L. Austin. In turn, Austin's work was made the foundation of the training of whole generations of Australian lawyers through the work of W. Hearn, the first professor of Law at Melbourne University (1877). As Hearn's books, especially those on legal rights, made clear, the law had nothing to do with justice but only with social regulation. So, with the developments described, the relations between rights and justice became matters which the courts would not discuss. There were, of course, aberrations, like the Harvester case, which were quickly corrected. Even today, the notions of natural justice are limited to certain procedural formalities so circumscribed by the formalities of the law as to make them appear neither natural nor just. In sum, the result of neglecting the distinction between the working class and the people, through defining the people as those entitled to the ancient rights of Englishmen to be discovered in the courts and not elsewhere, ended up by making the Australia of Federation provincial with regard to what rights were or might be; denying the notion of man as a political being first and foremost; and finally, since the real locus of political decision would be the courts, abolishing the notion of justice from our political discourse. This structure rested on the readiness of the people to allow such power to the courts - especially clear in the federal Constitution. The judges themselves recognised this, at least by the 1870s. Sir James Martin, New South Wales Chief Justice, had this to say in the case of the Evening News: What are the Courts [that is the Supreme Courts] but the embodied force of the community whose rights they are appointed to protect? They are not associations of a few individuals, claiming on their personal account special privileges and a peculiar dignity by reason of their position. A Supreme Court like this, whatever may be thought of the separate members composing it, is the appointed and recognised tribunal for the maintenance of collective authority of the entire community. The enforcement of all those rules which immemorial usage has sanctioned for the preservation of peace and order, and for the definition of rights between man and man, is entrusted to its keeping. Every new law made by the Legislature comes under its care, and relies upon it for its application. Without armed guards, or any ostentatious display - with nothing but its common law attendant, the sheriff, and its humble officials, the court keepers and the tipstaffs - it derives its force from the
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knowledge that it has the whole power of the community at its back. This is a power unseen, but efficacious and irresistible, and on its maintenance depends the security of the public.
Already, the understanding of the Australian people in the nineteenth century tended towards 'Britishness' (even the Aborigines were supposedly working towards assimilation with British civilisation in such a myth) and was clearly - as percipient commentators pointed out - elitist in the role it accorded the courts. The first exclusionary effect of this in a country of immigration like Australia was felt in the procedures for naturalisation of non-British immigrants, who had to become in some way British before they were granted nationality. Until 1948 their admission to the national family, to belonging, depended on their agreeing to be British subjects. Politically - that is, as citizens - that meant acting in terms of rights and duties as had been understood by the Britons, modified to meet Australian conditions. Only then would they have citizenship rights. No concession was ever made to the traditions whence they came, be they Aboriginal or continental European. Fortunately, the 'old' Australian adherence to a national collective myth had been weak in the nineteenth century, and contradictory. Indeed, in the twentieth century this was much decried. Despite experiences which reinforced the distinctiveness of being Australian, particularly through service in the First World War, it remained weak. This allowed openings later when it became necessary to face the new problems of effective insertion into a global economy which will require rules like those of the French Constitution of 1793, which allowed foreigners to become citizens practically at will.16 In 1901 these positive qualities were hidden or misunderstood, and formally the utmost value was put on belonging to the national family before citizen rights could be attained. Even the title of the first relevant Act, the Nationality and Citizenship Act (1948), revealed the confusion between the two notions. In the rest of this chapter we will discuss what the formal rules for nationality and citizenship were in 1901-48; and then what was understood by those rules in official and informal discourse and practice. Given the nineteenth-century experience it is a contradictory story of confusing juxtapositions. Formal Requirements before 1948
Australia was a country of immigration from 1788 when the whites started to conquer it. Nearly all the newcomers were British subjects, and subject to the ius soli. Even in the First Fleet there were, however, some foreigners. Such foreigners could obtain 'denization' on a case-by-
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case basis from the Governors of the colonies in whom such authority was vested. It was not quite the same rule of 'denization' as in Great Britain since the power of the Governors differed from that of the monarch, but it was substantially the same in its import. Gradually each colony introduced naturalisation laws after being granted selfgovernment: 1848 New South Wales; 1861 Queensland, Tasmania; 1863 Victoria. In 1875 New South Wales copied the British Act of 1870. The basic rule in all this legislation was that after five years of residence an alien could naturalise, though in Victoria no period for naturalisation was required. Already, in 1861 Asians and blacks were excluded from the legislation, showing that the first marker of exclusion was racist. Moreover, since a colony's jurisdiction stopped at its borders, a Chinese who had naturalised in Victoria could not carry that right into New South Wales. 17 In 1897 the Federal Council, to which New South Wales did not belong, attempted to overcome suchjurisdictional anomalies where they applied to Europeans by drafting an Australasian Naturalisation Act 'providing for the granting to naturalised persons of European descent of certificates, the holders of which on coming to a colony other than that in which they were naturalised and complying with any conditions of residence there imposed, were to be deemed naturalised in that other colony'. As we will see, one of the motives for Federation was, allegedly, the possibility of this common citizenship, so necessary for traders. The Constitution of the Commonwealth adopted and changed this proposal in ss. 34 and 51 (xix). Section 34 limited the qualification to be eligible to become a federal member of parliament to a 'subject of the Queen, either natural-born or for at least five years naturalised under a law of the United Kingdom, or of a colony which has become or becomes a State, or of the Commonwealth, or of a State'. Section 51 (xix) empowered the Commonwealth to make laws for 'naturalisation and aliens', in the place of the States. It was under the latter section that the first Act of interest in the history of Australian - as distinct from colonial - citizenship was passed in 1903: the Naturalisation Act. By this Act, those people already naturalised in the colonies were deemed naturalised in the Commonwealth and those already naturalised in the UK or resident two years in Australia were also permitted to naturalise. Again, Asians and blacks were expressly excluded from the relevant provisions. The limits of Commonwealth power were tested in the Markwald case of 1919-20 where it was decided that a German who was naturalised in Australia was still an alien in Great Britain. No extra-territorial validity was created by an Australian naturalisation. Very extensive powers of revocation were introduced in 1920 which also made the status of naturalised persons
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less certain even in Australia. In 1920 the Commonwealth Nationality Act was passed and remained in force until 1948. This Act consolidated decisions and legislation in the previous seventeen years concerning immigration and naturalisation. Though there was still formally no Australian citizenship, its provisions show clearly the telos in the construction of a national citizen which had taken place in Australia since Federation. A crystal-clear distinction was made between natural-born and naturalised Australians on the one hand, and aliens on the other. The word 'alien', to describe people who were not Australian citizens, was first used in this Act. The fundamental rule remained the ius soli established in s. 6 (i); then in s. 7 the Governor-General, at his 'absolute discretion', could grant a certificate of naturalisation when someone provided satisfactory evidence that: he has either resided in his Majesty's Dominions for a period of not less than five years in the manner required in this section, or has been in the service of the Crown for not less than five years within the last eight years before the application; and ... is of good character and has an adequate knowledge of the English language, and ... that he intends if his application is granted either to reside in His Majesty's Dominions or to enter or continue in the service of the Crown.
Once having proved a commitment to join the national family through language acquisition and residence, a naturalised citizen, subject to the provisions of any other Act (for example, s. 34 of the Constitution) would 'be entitled to all political and other rights, powers and privileges, and be subject to all obligations, duties and liabilities, to which a natural-born British subject is entitled or subject, and, as from the date of his naturalisation, have to all intents and purposes the status of a natural-born British subject' (s. II). 18 It is notable that the desperation to acquire settlers which had made Australia take anyone without many conditions being applied had, by 1920, been replaced with a clear insistence on prior proof of transference of affective allegiance to that part of Britain which Australia was still considered to be, in the sense that the borders were those of the dominions and not the Australian continent. This trend was even more evident in the Nationality and Citizenship Act of 1948 which added the frontiers of Australia to those of the British Commonwealth as a second point of exclusion. This Act followed discussions at a conference of Commonwealth Prime Ministers in 1946, at which it was decided that each Commonwealth country, including Great Britain, should have its own citizenship status but that the citizens of
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each country should also remain British subjects. The Canadians and New Zealanders introduced such legislation very quickly and the Australian Act followed. In structure and substance it altered the situation very little from the previous Act. But the formal creation of Australian citizenship made it a watershed since no longer was our history merely a footnote to that of the UK, and the citizens of the UK also faced internal borders for the first time. Part II of the Act simply stated that all citizens had British nationality. Part III - which concerned Australian citizenship - again restated the major ways in which a person could belong to the nation and subsequently acquire citizen rights: through the ius soli; through descent; and through naturalisation. As we noted earlier, the last category involved evidence of belonging through assimilation to the British national culture through language acquisition, residence and so on, but it added 'an understanding of the rights and obligations of an Australian citizen'. 19 We discuss this last issue in detail below. The then Minister for Immigration typified what was meant. His views owed more to his Irish forebear's arrival in: Australia in 1853 and his subsequent naturalisation as a British subject in 1876, than to the American rights based conception. The understanding of citizenship which Calwell and the ex-servicemen who composed the staff of his Department brought to the management of the Nationality and Citizenship Act 1948 was clearly based on the norm of British culture and ethnicity and on notions of 'privileges and benefits' not on equality of rights.20
Thenceforth the Act was changed as the understanding of Australian national identity moved away from the singular Anglo-Celtic identity. Amendments were passed in 1955, 1969, 1973, 1984, 1986 and 1993 which illustrate this assertion. These are discussed below. Before 1948 the acts of citizenship in which an individual had the right to engage once nationality had been established were characterised by their ambiguity. They certainly did not meet the fundamental requirement for a democratic citizenry since the Greeks, that each adult person have a vote of equal value which ensured control of the law-makers from below by a 'sovereign people'.21 This is a matter of such importance to a notion of active citizenship that chapter 7 is devoted to it. Here we note that it did not exist in 1901-48 by any measure at all. However, even had that primary prerequisite for democratic citizenship existed to guarantee the realm of private or human rights — as is the function of politics in a liberal-democracy - there was precious little to defend or extend in that private realm. The legal decisions concerning the meaning of ss. 92, 117, 116 and 80 established standards well below the norms for such rights which had been established since the 1791
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French Constitution. Sections 92 and 117 had been interpreted quite clearly to mean that all residents of Australia could move freely throughout the territory of the federal state and engage in work and trade where they wished. In 1920 McArthur's case held that the words 'absolutely free' in s. 92 meant 'absolutely free from every sort of impediment or control by the States with respect to trade, commerce and intercourse between them, considered as trade, commerce and intercourse'. The restriction to the States was overruled in James by the Privy Council in 1936 when, on considering 'freedom as at the frontiers', it declared that 'the people of Australia were free to trade with each other and to pass to and fro among the States without any border hindrance or restriction based merely on the fact that they were not members of the same State.' Other, later cases, like Gatwick, made clear that no State permit to travel was legal.22 So, in Australia the basic right after the right to life itself, without which no social contract was even thinkable, the right to move (for example, to a voting booth) has always existed. Less secure was the right to make up one's own mind what to do and do it, apparently guaranteed by s. 116 guaranteeing freedom of religion. Certainly, whatever counsel a person takes with his own conscience cannot be touched, but beyond that even Locke's version of tolerance is not met. In 1901-48 the cases held that no one could object to peacetime military training on conscience grounds. In 1943 the Jehovah's Witness case did not permit the banning of that religious group on the grounds that it regarded the British Empire - like all other state organisations as an 'organ of Satan'. The High Court decided, however, that parliament could make laws proscribing religious practices 'prejudicial to the defence of the Commonwealth'. In this case the overriding right of the nation-state was given clear and alarming form by the Chief Justice, Latham. No democrat in a liberaldemocracy could object to his assertion that 'free' meant 'free to' not 'free from' as a rule of law is always the premise. But, in reference to the James case mentioned above, the Chief Justice also made clear that 'governed by law' meant governed by the courts and not the 'sovereign people'. The courts saw themselves as guardians of the community and its interest which overrode that of individual citizens. After discussing Mill in a negative way Latham proceeded: I think it must be conceded that the protection of any form of liberty as a social right within a society necessarily involves the continued existence of that society as a society. Otherwise the protection of liberty would be meaningless and ineffective. It is consistent with the maintenance of religious liberty for the state to restrain actions and courses of conduct which are inconsistent with the maintenance of civil government or prejudicial to the continued existence
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of the community. The Constitution protects religion within a community organised under a Constitution, so that the continuance of such protection necessarily assumes the continuance of the community so organised. This view makes it possible to reconcile religious freedom with organised government. It does not mean that the mere fact that the Commonwealth Parliament passes a law in the belief that it will promote the peace, order and good government of Australia precludes any consideration by a court of the question whether or not such a law infringes religious freedom. The final determination of that question by Parliament would remove all reality from the constitutional guarantee. The guarantee is intended to limit the sphere of action of the legislature. The interpretation and application of the guarantee cannot, under our Constitution, be left to Parliament. If the guarantee is to have any real significance it must be left to the courts of justice to determine its meaning and to give effect to it by declaring the invalidity of laws which infringe it and whether a particular law can fairly be regarded as a law to protect the existence of the community, or whether, on the other hand, it is a law 'for prohibiting the free exercise of any religion'. 23
Certainly Latham was right that in any liberal-democracy the courts are required to protect the private from the public in accordance with the social contract. The issue in Australia is the way that court can reason about such matters. Its self-identification as guardian of past traditions (the community) is completely at variance with, say, the European Court of Human Rights for which the prejudices of a particular society, even democratically expressed, cannot be the final standard or point of reference. Decisions which accord with democracy cannot be communitarian in a narrow national sense. There is litde doubt that the right to jury trial (s. 80) and to fair compensation for confiscated property (s.51 (xxii)) are established, although limitations on the first do exist. Moreover, what is fair compensation is difficult to assess in time of war. However, these rights did exist in some form or other in Australia. What then arises is what is further necessary to an active exercise of democratic citizenship rights: the right to express oneself and to organise and to strike. None of these are mentioned in the Constitution. Nor do the cases establish such rights. Certainly, there is a limited freedom of the press, and the right to set up trade unions was accepted. But leftwing and right-wing 'anti-system' parties were systematically discriminated against, and in the Second World War they were banned. Often this was rationalised as legitimate on the grounds that they were un-Aus tralian. Notable examples are the cases of Walsh and Johnson and Kisch, both of which arose under the Immigration Act and again made clear that a prior commitment to a very limited band of Anglo-Celtic values and political traditions was a precondition for rights to act politically in Aus-
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tralia. The first case involved s. 8AA (2) of the Immigration Act which allowed the Minister to deport from Australia anyone 'not born in Australia' if he was satisfied that that person had been concerned in acts directed to 'hindering or obstructing to the prejudice of the public, the transport of goods or the conveyance of passengers in relation to trade or commerce with other countries or among the States, or the provision of services by any department or public authority of the Commonwealth, and that the presence of that person in Australia will be injurious to the peace, order or good government of the Commonwealth'. Extensive argument which sought to show that the seamen's union officials (also Communist) were immigrants, failed and so the British-born officials were allowed to remain. But the notion that a person could be denied rights because their views were un-British was the leitmotif of some judgments. The second case concerned a visiting left-wing journalist, Egon Kisch. The state sought to use the section of the Act (s. 3a) which allowed the administration of an examination in a European language to immigrants. It was originally intended to be used against Asians who wished to stay in the country. Failure meant deportation. Since Kisch had an extraordinary command of European languages the test was administered in Scottish Gaelic - clearly a political choice. He failed and was sentenced to six months in prison. On appeal, the court decided that Scottish Gaelic was not a language within the meaning of the Act and he was freed. The local Scottish community was so outraged that it made comments which led to contempt of court charges which were upheld. 24 Trade unions were generally regarded as part of Australian life. On the other hand, strike action was banned until 1930 under the Conciliation and Arbitration Act (1904) and could lead to heavy sanctions thereafter. Indeed, the architect of s. 51 (xxxv) of the Constitution which set up conciliation and arbitration for industrial disputes in more than one State, H. B. Higgins, wrote: 'The barbarous weapons of the strike and lockout would be replaced by a new province for law and order whereby all matters of conflict would be settled by binding arbitration', which is what s. 6 of the Act did. The section was only repealed in 1930 when it was obvious that it could not be enforced in the face of the hardship imposed by the reduction of wages in the Great Depression. It was, even then, replaced by a 'bans' clause which made an award depend on a union undertaking not 'to ban, limit or restrict work'. Up to 1970 the court always upheld such bans, imposing heavy fines.25 If the right to organise and strike in defence of economic and social conditions was thus severely restricted in Australia in 1901-48, it is nevertheless true that the Conciliation and Arbitration Act opened the way for the establishment of a principle of entitlement to a fair minimum
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wage for male heads of households. Consistently with his own premises, Higgins, now presiding over the Court of Conciliation and Arbitration, introduced that notion in the Harvester judgment of 1907 and it later passed into practice. Until 1921 the capacity of industry to pay such a wage was regarded as immaterial. This meant that the liberal-socialist demand for those economic and social conditions which allowed real political participation were met here, at least for men who worked. While this disadvantaged non-workers and women and later led the system into contradiction, Australia certainly met that requirement for citizenship for about two decades. Only in 1931, in the first Wage Inquiry, prompted by the Depression, was that mandatory standard changed so that the court could reduce wages on the grounds of calculations about 'past profitability and cost of production in an industry'. 26 Overall then, until 1930 when the Depression threw Australia into economic turmoil, national British subjects, natural-born or naturalised, did have formally the economic and social capacity and the freedom to move and think necessary to the neo-Kantian citizen of the nation-state. But that person did not always enjoy the requisite capacity of organisation, much less the equal vote needed as the basic citizen's right in a democracy. What was more important even than these formal conditions was the public discourse about the meaning of all these Acts and legal decisions, as that was what indicated the openings and closures which could and did ensue. Public Discourse about Citizen Rights 1901-1948 We start from the time of discussion in parliament and the institutions of government, usually among men who sometimes had learnt in schools in 1860-70, the basic principle of civis romanus sum, that is, once a citizen always a citizen. 27 Major official debate started around the Naturalisation bill in 1902-3. It revealed a complete confusion of the ideas of nationality and citizenship among the elected law-makers. In their view, the basic principle of the nation-state view of citizenship came through clearly. A person had to belong by birth or choice to that national community or 'family' and only then would that person be admitted to citizen rights. So the Postmaster-General introduced the bill with the affirmation that an applicant for naturalisation had to show an intention to settle, meaning to live permanently thereafter in Australia. Equally, a woman who married an alien, even if natural-born, lost her nationality and citizen rights, including the right to vote. There was general consensus on the first point: a naturalised person
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had to give up their former allegiance and take on that of a British subject. But the second point provoked the retort whose sentiments were widely shared: 'Evidently the equality of the sexes is not recognised' - as it supposedly was elsewhere and notably in the extension of the suffrage to all women in the Commonwealth. Combined, these responses indicated the main point of openness and closure. Again and again it was recognised that Australia was a place of migration and needed migrants. There were already many Europeans in some areas; an American was Premier in South Australia; a German was a cabinet Minister in Queensland and so on. Such people clearly had to have their admission to nationality facilitated and it was an insult even to expect them to apply again to the Commonwealth after having been 'citizens' in the colonies for many years. Again, it was clear that many members thought it inconsistent with British traditions that women should lose their nationality automatically on marrying 'out'. This pointed to future challenges to such closures: obtaining and keeping Australian nationality would eventually become easier and easier. On the other hand, a clear line was drawn between the openness shown to Europeans of either sex who could become British, and other races or those who married them and thus lost their 'self-respect'! Asians, Pacific Islanders and other blacks were totally excluded from any possibility of belonging. The essential racism of Australian nationality policy was thus stridently present, revealing that behind the vaunted legal ius soli lay an ethno-blood notion of the national family. This was not unlike the attitudes in Germany, or other homogeneous populations like Japan. These attitudes were shared by Australian women, even organised citizen groups, which goes some way to explain why the men most condemnatory of the treatment of women in the Act were also the most racist. Women were real protectors of racial purity in this early debate.28 The racism was extreme. When Senator J. C. Stewart argued that 'we want population (and Britain does not)' which was consistent with more openness, the racist response was that Australia needed to be 'jealous' about according British citizenship to people like 'gypsies'. 'We do wish to make the Commonwealth home of the European races, we do not recognise the same principle with regard to Asiatics, and we ought not to afford them the same facilities for becoming naturalised.' 29 The contradictoriness of adopting a national identity, which was white British ethnic, with future realities was obvious. The reason given for such lines of exclusion was that Europeans either had 'no idea that they were not entirely Australian' or that they shared a common culture which enabled them to be assimilated easily with British norms.30 They were not seen as culturally problematic once they
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had given up and transferred allegiances. It was not spelt out why Asians and blacks and other different minorities were not acceptable, although reference was made to cleanliness and probity where gypsies were concerned. The irrationality of racism overrode the need for argument. It was all so obvious. Besides being irrational, the closure was discriminatory as some Chinese were already British subjects or had naturalised in the colonies. Moreover, the number of naturalised 'coloured' people was tiny, numbering in the teens, and no real major influx was possible. Thus there was no risk of any significant political effect, which was not the case in what speakers thought were German-dominated electorates in South Australia and Queensland. We can only infer that, like all nationalisms based on exclusion of the others, they are irrational and tend to constitute what is different as enemy, as Carl Schmitt pointed out a little later. Forty-five years later, when the Nationality and Citizenship Act was brought down, these attitudes had hardly changed and only some of the openings hinted at had been made. Again it was emphasised that on becoming Australian nationals, aliens would obtain British and Australian citizenship. 31 Indeed, it was a little easier to do so. The anomalous position of women had been changed. They were to be allowed to choose their nationality on marriage and to be treated almost equally with men. This was necessary, some speakers noted, because so many women were now marrying aliens. The equalising of treatment started to extend to other Commonwealth nationals, including Britons, acknowledging 'the fact that we have attained nationhood'. 32 Australians were less British subjects and more equal partners with other British Commonwealth countries. So the ideological understanding of the nature of the national community of Australians had changed. Overall, however, the structure of the discussion was the same. First, there was concern with the extent of the Australian community, and only then was there concern about the participation of those admitted to it as citizens. The same metaphors were used. Australia was a family or part of a family of British peoples, all sharing the same surname, but now with different 'Christian names'. This, as Senator McEwen observed perceptively, posed a problem for Moslems. 33 In 1903 the 'Britishness' was prerational and mindless as Australia was like a child in its infancy, but by 1948 Australia was a mature entity whose creative difference had emerged more. The country still acknowledged its 'Britishness', but also its own different Australian identity. This would, in time, spell different exclusions within the same logic of assumed blood ties and family similarities. Using the family metaphor so favoured in parliamentary debate, we can say that the natural children, having started to admit adopted
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children to the family, cast out the father and mother. What was taking place in the first fifty years of this century was a change in the points of reference in the collective memory. Indeed, by 1948 an overwhelming majority of the population of Australia had been born here whereas in 1903 a very large proportion came from the British Isles (8.25 per cent). The collective memory was just as false, but it was false in different ways. The Australian memory was even more in the classic warrior mode than that of the Anglo-Australians of 1903, since it harked back to the Anzacs and to Gallipoli, to battlefields where the British, and certainly their leaders, had 'let us down'. In a widely held version of this myth, the perfidious British mother sacrificed her youngest sons. The remarkably Periclean flavour of the Anzac legend, where a sense of Australian identity was reputedly born, obscured the contemporaneous sense of betrayal. It was this which, in fact, made the nascent Australian nationalism so contradictory and weak: it had to leave behind its British origins. The family model so vaunted by Australians of the First World War had some Oedipal problems.34 It is sometimes maintained that a rabid Australian nationalism started in the 1880s. Certainly, after self-government had been granted there was little need still to fight for the British civil and political liberties which had been the slogans in the first half of the century. But even the anti-British sentiments of the Bulletin and other papers of the last two decades of the century were more cultural aspirations than widely held attitudes among the population of the cities where the bulk of Australians lived. Only in the twentieth century was the national myth forged. It created its own Achilles' heel in precisely what was being forgotten and obliterated, as the myth of the stalwart Briton was replaced by that of the archetypical Australian 'digger'. It obliterated different traditions and histories in that process. In turn, this meant that the understanding of citizenship in Australia became less progressive as the century went on. This was not only due to the relative closure when the borders shrank from those of a multinational Empire to that of the Commonwealth of Australia, which was what happened between 1903 and 1948, but was also due to the loss of a progressive political definition of the citizen. In the second half of the nineteenth century the decisive point of reference in discussions of such matters had been the highest aspirations of British liberals, epitomised in Australia by the views expressed in the Age, which was in itself an outgrowth of what McKenna called the desire to be 'more British than the British' in political matters. But in the 1930s there emerged a cultural definition of 'Australianness' which had disastrously fascisant overtones.35 An example of such literature was the work of P. R. Stephensen in that decade.36 This wed the national identity to the virulent national-
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ist exclusiveness which went back, as we have seen, to legislation in the 1860s. There was, thus, a slide in popular discussion of nationality and citizenship from the comparatively open tradition of ius soli to notions based on blood ties; those of the family and community; and finally views we associate more with Germany and Japan in the 1930s than with the legal position of the Australian state. Unofficial Discourse on Citizenship
We first examine this through the media of 1901-48. This tended to reduplicate the official discourse of the same period in a less coherent and less sophisticated fashion. In it, the insistence that a person belong nationally before they be given citizen rights was linked incessantly, almost exclusively, with the notions of belonging through blood ties and through racial commonalities. It was consequently extremely exclusive. There was practically no discussion of citizenship as such in the press media until the 1930s. There was, of course, a volume of material endorsing the White Australia policy in such media, whether capitalist or labour. We focus exclusively on comment directly on 'citizenship', although this usually involved a discussion of immigration and the rights of white immigrants to naturalise. Chapter 5 discusses in more detail the debate on migration. Here we recall that the portfolio on citizenship and the expected standards were set by the Minister and Department of Immigration from 1945 onwards. A perusal of the Sydney Morning Herald for both letters and articles uncovers the following sort of comment. Emblematic was the letter about emigrants from Britain which declared that 'there can be no objection to those of the same blood as ourselves' (27 December 1934). The uniting factor of shared blood still extended to Britons, but by the 1930s it did not extend to other 'alien migrants', especially to southern Europeans. Although only a trickle of such refugees, usually from Fascism, was arriving in the 1930s, such people were regarded as too different culturally. When, for example, rumours of Mafia-type activities in Queensland started to circulate, Billy Hughes warned against importing 'un-Australian ideas' into the country (2 April 1937). Alarm was frequently expressed at the supposed discrepancy 'between foreign and British migration to these shores'. The absolute short-sightedness of our responsible authorities should be very clearly apparent to all who read the report in this morning's Herald of the address given at the Millions Club yesterday by Professor W. Menzies Whitelaw of McGill University, Montreal, on the subject of 'Canada's Two Peoples' and the danger of civil strife. Professor Whitelaw's remarks, referring to Canada of course, that 'These French people cannot have cultural uniformity with the
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British' and that 'we do not want to turn good Frenchmen into bad Englishmen' could surely be applied with at least equal force and justification to the foreigners continually arriving in Australia, especially so when official statistics prove that total arrivals from overseas is actually decreasing in numbers despite the large increase of foreigners migrating to Australia ... (14 May 1937)
This insistence on British homogeneity is remarkably less open than the attitudes of 1903, which were relatively open to Europeans generally. The 'loss of British stock' resulted in demands for more careful inquiry into the 'health and moral character' of other immigrants (19 August 1937). At the same time, it was frequently suggested that Australia should encourage northern European migration as such migrants 'made admirable citizens and had the temperament and habits which made them readily acceptable by the rest of the community' where southern Europeans did not (19 August 1937). On occasion this view was reinforced in letters from such northern Europeans. One insisted on their preparedness 'not to maintain a separate community difference through clubs' (4 January 1939). A common notion was that while Australia needed population it did not need 'minority problems' (4 April 1939). When the Second World War started in 1939 immigration dried up except for Allied troops and some refugees. Aliens here were interned in a fearful and irrational fashion which often did not take into account their earlier anti-Fascist politics. Although some even volunteered to fight - usually the ultimate test of citizen commitment - this 'was coldly turned down' (7 July 1943). But it was increasingly recognised that naturalisation had been made almost impossible for such people. This led to a dawning recognition - after two decades of exclusivism on the grounds of 'blood' - that 'non-British migrants' were better than none. Indeed, they might even be an asset. In its leaders the Sydney Morning Heraldbegan to warn against the 'characteristic Australian intolerance of "foreigners" and to point out that once admitted, refugees 'are entitled to expect equitable treatment and to be conceded the full right to earn an honest living' (31 August 1943). The 'widespread xenophobia' should be replaced, in its opinion, with a recognition that 'Australia could benefit from a mass influx of migrants after the war' (22 October 1943; 19 January 1944). The gradual softening of the British 'blood ties' argument of the 1920s and 1930s, while relevant to the criteria for admission to citizenship, did not mean that the standards for acts of citizenship once admitted were developing at the same pace. There is practically nothing in any major metropolitan paper direcdy dealing with that subject, although it is certainly there obliquely and unconsciously in the discussions of elections
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and politics generally. This is discussed in chapter 7. Rather, the war encouraged notions that 'citizenship demands sacrifice from the community' and condemnations of, say, left-wing trade unions, for pursuing sectional corporate class interests (9 November 1944). Moreover, when in 1945-48 the expected influx of 'alien' migrants started, especially from northern European countries, it was still the expectation that 'the new migrant should be assisted to became a good Australian'. Assimilation was the slogan of the period even though there were glimmers of hope in concessions like: 'the Australian in turn should realise that he may have much to learn from people from outside' (30 June 1945). In effect we say to them, Australians invite you to make your home with us. We invite you to become citizens and to practise our democratic way of life. We shall expect of you the duties of citizenship and give you the rights and privileges which belong to every Australian ... Six hundred years of struggle have gone to shape the democratic way of life that is ours, and we should be jealous of this great heritage and make sure that all who are admitted are aware of its meaning (26 July 1947). When the Nationality and Citizenship Act was debated in 1947-48 it was made abundantly clear by a leading legal spokesman that this ended in the creation of 'British subject' rather than the notion of citizen appropriate to 'cities and republics' (8 June 1948). Nevertheless, the 'blood' notion had softened in favour of the idea that aliens could become part of the Australian family, itself a subset of the British family, on adoption and acceptance of the British traditions of law and politics. The constant slide, from the relative openness of the ius soli to talk of 'blood' and family in most of the period up to the Second World War, is unsurprising. It is also not surprising that until the war a clear distinction was seldom made between nationality, or who could belong to the citizenry, and the acts of the citizens themselves. The sources of such distinctions were not likely to be the 'people' themselves as they were already racist and politically passive. In 1898 Tocsin had written apropos Federation: 'The explanation of the lack of public interest in the Federation business is that: 1 The people aren't ready to federate; 2 They don't know what it means; 3 Their leaders and their newspapers are not brainy enough or honest enough to try to teach them what it means.' 37 The third assertion is half-true where it concerns citizenship as a notion and a practice. Certainly, the way it was discussed in 1901-30 was remarkably conservative and seldom went beyond extolling the virtues of
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the British traditions of common law rights. But there was, in fact, more material available and of better quality than in 1948-87. It was there to be discussed and taught but its finer points were simply neglected. The founding fathers were totally remiss in this regard. Even the 'progressives' among them do not appear to have looked beyond the legal dimension of Federation. When they referred to the United States' experience as a guide, they neglected the strong notion of citizenship which underpinned it. For example, James Bryce, whose other work was decidedly a major point of reference in the Convention debates which led to the adoption of the Constitution of the Commonwealth of Australia, wrote a significant book, Promoting Good Citizenship,38 and there was a mountain of material on citizenship in all its dimensions and on civics in the United States, already widely taught in schools there. This was ignored here. The way in which Bryce lectured on his subject is very important as it is quite different from the way in which near-contemporary Australian material treated it. He spoke of what happened in 'cities and republics'. Moreover, he singled out Australia as one of the places where, by 1909, civic virtue was most absent. Bryce identified the major problem of citizenship in the early twentieth century as the decline in the active democratic presence of the citizen as the modern state became impossibly large and complex and the alienation of the average person was great. He even lauded the introduction of the compulsory vote by some Swiss cantons as it 'is well that they should go; for it helps to form the habit'. Bryce urged the need for active involvement in democracy by the citizen to offset the realms of the private and the state. Indeed, a citizen had to fight valiantly for his opinions even where he was in a minority in the face of 'the multitude hasting to do evil'. In acting thus a person passed the prime test of virtue and courage as a citizen. 'Now, this is, or seems to be, a more formidable task the vaster the community becomes ... The primary duty of the citizen used to be to fight, and to fight not merely against the foes from another State, but against those also who, within his own State, were trying to overturn the Constitution or resist the laws. It is a duty still incumbent upon us.'39 But in 1909 that took the form of voting, even in local politics. No one could excuse himself by pointing to its corruption or vulgarity. Bryce explained the failure to be active through voting in a considered fashion as due to lack of education and to lack of 'mutual help', even in advanced countries. While the first was clearly a formal task - especially for educated audiences of the sort who listened to him - he saw both in combination as requiring participation and therefore institutions which facilitated that. These he enumerated as proportional representation; the compulsory vote with sanctions, and as much direct democracy as
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possible through popular initiative in legislation and through referenda. Through such mechanisms a sense of community could be built. 'Think of the principle of the Sovereignty of the People which you have carried further than it was ever carried before and which requires and inspires, and indeed, compels you to endeavour to make the whole people fit to bear a weight and discharge a task such as no other multitude of men ever yet undertook.' 40 The few men who met such a request for education here took a much less democratic stance in discussions of citizenship. Undoubtedly, the most influential book was Walter Murdoch's The Australian Citizen: An Elementary Account of Civic Eights and Duties (1916) which went through several editions in the next two decades. His citizen was more someone who obeyed the state rather than one who founded the state in active democracy. His unexceptionable starting point is an affirmation of the primacy of the rule of law, or the state in all its institutions and levels. That state was clearly not Athens, but the large modern state with representative government. But, while this suggested the central importance of the continuous active vote of the citizen (as Bryce had pointed out), when Murdoch discussed this issue, the vote was seen 'as part of liberty' and liberty was then defined as 'freedom to' within the realm of obligation and duty. 41 'It follows that the good citizen of a well-governed country is the only person who can enjoy true liberty. For the law, in a well-governed country, only restrains us from doing those things which, if we are good citizens, we have no wish to do.' Murdoch claimed that in Australia that would occur very rarely and that was when the vote would be important in effecting changes. But Murdoch, like many liberals, subscribed to the view that discontent with what existed, and a striving to attain a better society where more social justice existed, was what civic virtue was. 'The good citizen ... strives with all his might, in however a humble way, to make his country one in which justice prevails, in which freedom is real and no shadow, and in which the spirit of brotherhood rules.' Thus the good citizen's chief concern was with the community of which he himself was a member: to make it a true Commonwealth. 42 Murdoch therefore believed that all people should be treated equally by the law as men, as this was perfect fairness and a recognition of common humanity. He took it for granted that that community was Australia and that it was to be defended. Overall, such sentiments were widely shared in the first two decades of this century by progressive liberals. Murdoch only echoed the views of Alfred Deakin, Australia's first liberal Prime Minister. Deakin insisted on legal and political equality; one person, one vote, one value, and on the need to establish a social safety net. 43 Such themes were salient in
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the views of postwar spokesmen. For example, in a lecture to the Royal Australian Historical Society in 1919, the then New South Wales Director of Education, Peter Board, emphasised views he had developed since introducing civics to the curriculum at the beginning of the century.44 Citizenship was the 'problem of the present and the future'. It treated history as a laboratory and learnt from past error. The war is altering many formerly accepted views as to nationality and the State. The notion of the State as an organisation in which direction and government pass from a superior authority to the people, has now given place to the notion that authority passes upwards from the people to those who govern. This different notion of the structure of the State involves a different concept of citizenship; for citizenship is that which deals with the relation of the individual to the State or the community.
Since the State was the product of a social contract, it followed that citizenship meant some limitation on freedom. It was 'freedom to'. 'Robinson Crusoe, alone on his island, had unlimited freedom, but lost it the moment that Friday appeared.' It followed that the eighteenth- and nineteenth-century notion of laissez-faire had collapsed. It was a gospel of gilt-edged selfishness. Opinion, personal and individual, may be absolutely free; conduct is not. The development of the highest type of Australian citizenship must depend upon a widespread conception of the principles that govern the liberty of the citizen. Citizenship, too, depends upon a sense of responsibility, and this again requires some outlook on the needs of society. At present there is a distinct cleavage along occupational lines. This is inherent in the structure of society, for interests follow occupations, and social unity depends upon common interests. If, therefore, a common citizenship is to depend upon a degree of social unity it is necessary that there should be a power to look beyond the individual occupation to the larger organism to which the occupation contributes. A good workman, whether he works in wood, or in iron, in laws, or in medicine, is a valuable element in society; but if he cannot see beyond his work he is a poor citizen. Thinking that is dominated by the ideas of the social or occupational group to which the individual belongs cannot contribute to the common good.45
Board felt that more public education was absolutely necessary. By this he understood more than the essential formal schooling in civics. Because of its character, education for citizenship must depend on a training which lies outside the schools altogether. It involves what Galsworthy has described as 'life-made thought' rather than 'book-made thought'. It is above all an education through debate and discussion, or active participation. Like Murdoch, Board concluded with the usual genuflection to the
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national community: The Peace Conference is bringing Australia within an international circumference. Have we the type of citizenship that can realise not only the responsibility for Australian social and racial integrity, but is ready also for the role of guardian of less advanced communities. Our patriotism must take on a wider meaning. It is not mere love of one's country. It is willingness to serve one's country. The one is mere emotion, the other a matter of action that calls for personal effort.46
We can see that Australian thinkers about citizenship were remarkably advanced until the 1930s. Certainly, they too shared the notion that there was a community of the nation-state which had to be defended, but they also advanced views at least as advanced as those of contemporary British liberal-socialists. Not that they necessarily derived their thought from them. Comparatively, Australia was a social experiment of extraordinary dimensions at the beginning of the century: the test case for liberal socialism. Indeed, there are strongly Kelsenian overtones to the notion of power 'from below'. On the other hand, there are strong dissimilarities with the most advanced United States literature of the time, of which Bryce is an example. Above all, much less attention is paid to the crucial role of the principle of one person, one vote, one value for democratic citizenship. The vote is almost a coda. This could be due to the difference between Rousseauian views of United States discourse and those inspired by British constitutionalism. But, it seems more important that all seem to have shared the myth that that principle already existed here, and that Australia was thus the most democratic of countries. Murdoch certainly asserted this to be the case.47 As shown in chapter 7, that was incorrect but it goes a long way to explain why such progressive liberal-socialist thinkers would not have focused on the issue. Where it does not exist a people cannot, of course, be sovereign. It is understandable that a focus on malapportionment would not be central in a country which boasted universal suffrage and the secret ballot. However, neglect in covering all the institutional dimensions of the vote meant a shift in focus of attention to other dimensions of citizenship, above all to the notion of the citizen-warrior in defence of the nation and as consumer of its benefits. Such a person was only active when he faced outwards across the border to inimical others. He would tend to be a man. In a world of returned servicemen receiving special treatment (at least, apparently) such definitions were palatable. Thus Sir Russell Braddon, in an address on citizenship in 1930, simply repeated the Greek example of those ready to die for their country and then made Marat's assassin the paragon of such warrior qualities against the enemy within. The fine qualities of a citizen had been bred in the war,
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and such soldierly qualities had to be used internally to create a sense of debt to society for having provided so many benefits. Fortunately Australia had no minority questions as it was 97-98 per cent Anglo-Saxon, 'and the great majority are intensely loyal to King and flag'. The vanishing Aboriginal race was not 'of serious concern to government'. 48 But coupled with such views, which could only strengthen the general 'xenophobia' referred to in the Sydney Morning Herald, were also more sophisticated views presented by New South Wales conservatives around the Institute for Public Administration. Their general thesis was that Australian democracy was threatened by a creeping totalitarianism, whose roots lay in early passivity fostered before 1860. But they also favoured an active citizenry who challenged the welfare state and any tendency towards centralising Australian government. Even the English system was seen as superior. They saw the Australian institutional system of state as seriously defective if, as was the norm in a democratic community, 'the usual end is described as the government of the people, for the people, by the people'. Since they saw the English people's capacity to govern as arising from practice in the town council, the cooperative, the trade union, the friendly society and hosts of clubs, they wanted much less administration and much more democracy everywhere in Australia, and devolution of government. Deeply hostile to the party system with its cult of the leader and cabinet rather than legislative government, they called on Australian egalitarianism to assert itself by building strong local communities. As the Second World War proceeded and the Australian state centralised many functions, particularly those of the purse, in its hands, they continued to warn against the tendency to judicial usurpation of the legislative function and to counsel the creation of more elected local and regional authorities. 'If individuality means anything, it means diversity. Diversity produces different standards and competing goals. It stimulates initiative, encourages emulation, provokes endeavour, and puts a premium on inventiveness.' 49 Their focus on the need for more local government in a country where such plans had been abandoned in 1840 is noteworthy because of its advanced democratic qualities. Here it should be noted that the conservatives' views did not mean that they did not believe in the right of everyone, including 'liberal clergymen', to freedom. They quoted approvingly the work of Keith Hancock and the Workers' Educational Association. F. A. Bland thus wrote in 1940: Politics is concerned with purposes; administration with the realisation of those purposes. In our system of politics, the purpose is to foster the spirit of self-government, as Campbell Bannerman phrased it, 'Good government is no substitute for self-government'. If we believe in that principle, then the primary object of political inventiveness is to organise our political system to
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FROM SUBJECT TO CITIZEN: 1 9 0 1 - 1 9 9 6 ensure the maximum participation in public affairs. It cannot be denied that we have paid little attention to our political theories in our administrative organisation. Because local government developed in this country long after the general pattern of centralised control had been woven into our system, and because resources were unevenly distributed, we have always preferred government from the centre to government from the locality. The effect of this policy has been disastrous. Localities have accustomed themselves to relying upon the central government for most things, even for their utilities and amenities. Thus the spirit of independence has evaporated and the desire for change is non-existent ... At the same time, it tends to produce an exaggerated respect for authority, for the distant official is always likely to be invested with an omnicompetence that is denied to one who is in daily contact with his fellows in a town. Furthermore, the scales in such a relationship are always weighted against the individual citizen. Because he tends to feel impotent in any contest with a distant official, he is likely to accept decisions as final and to succumb to a belief in authoritarianism. Because all responsible decisions are made by people removed from him, he is likely to lose capacity for initiative.
So Bland and his associates pointed to a solution of revivifying selfgovernment in localities, regions, and in new States, as had been proposed in 1925. These would assume all the day-to-day decisions concerning the community made by the administration. 'The general principle of such an allocation [of powers] is simple. Local Government implies that localities must manage those affairs which are specifically and predominantly local in character.' Existing central staff would be transferred to the localities and controlled by local bodies. This emphasis on the need for more local democracy became an abiding theme of this group during and immediately after the war.50 Their views are not only worthy of attention as promoting the idea of more democracy in more places; but also as early examples of 'subsidiarity' avant la lettre. Their views are the most significant in the period under examination, both in the novelty of their focus and in their extraordinary advance. Alone of the Australian writers they insisted on how very different and inferior Australia was to the British model. In the other writers there was a certain complacency which consisted of thinking that Australia had made the British model into something better, mainly through its social system. This led to a neglect of the negative features of 'state socialism' as it was practised in Australia. The writers for the Journal ofPublic Administration did not always decry the social safety net. Often they spoke in favour of it, but because of their less ideological view of Australian history they were able to recognise how far Australian history diverged from the British ideal. On the other hand, their insistence on more democracy to foster civic virtue was not likely to find a wide audience in a country increasingly dominated by Labor principles and sure it was the envy
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of others. They certainly did not appear to make it into civics courses in Australian schools. Civics for Schools
Even in the nineteenth century Australian schools had educated pupils in areas which can be dubbed 'civics'. But this is only true if we elide civics with a history focusing on the irrelevant Greek and Roman models. As Board had pointed out, citizenship is concerned with politics and the social contract as a fiction, and thus with ethics rather than history. History is really only central to citizenship if the family or descent model of the community is also accepted as central to 'belonging', or if the past is understood as a 'laboratory'. This is to understand history as 'collective memory' and not the scholarly understanding of history, which usually challenges it — as Renan pointed out — by deconstructing its myths. It is not unfair, then, to claim that the study of citizenship really began in Australian schools when it was understood as a distinct object. Schooling was a state responsibility under the Constitution and had usually been heavily vocational throughout colonial history. Civic courses proper started after Federation and reached a new consistency with the adoption of Alice Hoy's text, Civics for Australian Schools (1917), in Victorian schools. It was directed to the Intermediate examination for 15year-olds in civics. In it we can see the overall orientation of such teaching before the Second World War. In his introduction to the book, Frank Tate, the Director of Education for Victoria, acknowledged the importance of the war in focusing attention on the need for a full appreciation of the rights and duties of citizenship. Tate shared the belief that Australia was the epitome of democracy and that the Australian people had only 'to decide on a course of action and they can secure what they want'. On the other hand, he recognised that the institutions in themselves would not be enough if there was an inadequate conception of citizenship. 'What is wanted is a ... realisation of comradeship and brotherhood within the State. The old question, Am I my brother's keeper is today being answered, Yes.' The goal was that all should attain the fullest of their potential through strengthening the community through work. This desire to build a community united through 'fair play' was remarkably progressive. But from the outset the importance of war and defence against the Other was also emphasised - a sort of opposite to communitarian brotherhood. 'What a wonderful manifestation of cooperative spirit was created by the fact of war alone. The battlefield and warrior citizen was thus primary in explaining civic virtue and concern for our kin.' Tate closed his introduction by giving this advice about teaching
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the young: 'This book on civics is an attempt to place before the students of secondary schools a concise account of the institutions under which they live. It will be their part to maintain and to develop these institutions still further, and if necessary to defend them against internal and external ene-
mies [emphasis added]. One of the first conditions of successful defence is to have an intelligent knowledge of the thing that is to be defended.' Since it was the state which emerged to defend the community and was the context for all rights and duties, the primary obligation was its 'preservation'. Implicit in this view was the idea that Australia had some good of a superior sort to what existed outside. It meant a complacency which boded ill for new ideas 'from foreign parts'.51 The text itself reinforced such themes. It even started with a personal recollection of the chaos of the 'goldfields' and the primary need for law and order and its maintenance. Its theoretical starting point was that our civilisation began with patriarchy, the family, intermarriage, tribes and village communities. Then, when 'strangers were allowed in as responsible members of the Council, family relations cease, and the clan or tribe changes to a State'. We speculate that this statement would meet the approval of both Constant and Bobbio because it rejects the Aristotelian model and its family basis. History is adduced to show that states which admitted internal outsiders usually survived and the others did not. Rome, for example, became a res publica from the moment it allowed the plebs to join the patricians in the choice of rulers. The rule of the people as citizens was what made a democracy. Russia was a despotism since there a person was a 'taxpayer' and not a 'citizen'. Amplifying on that theme, the book proceeded to state that 'it is to Parliament that we owe the freedom that the English-speaking race prizes highly'. It claimed that the British parliamentary system had been copied in France, the USA, Germany, Hungary and the colonies. In that parliament the legislature was supreme because it could ultimately appeal to public opinion in an election and thus could make cabinet responsible to the people. This could be seen in the evolution of the Australian system which had gone from an autocracy 'of the most absolute kind' to representative government, and finally to responsible government in 1856. The problems of such a history posed by the deadlocks of 1865 and 1877 in the Victorian parliament, which made quite clear the superiority of the upper house, were supposedly overcome by legislation in 1903.52 This posed the issue of the essential right of a democratic citizen: the vote of equal value. 'In no other case does the fact that rights and duties are correlative appeal to us with such force as in the citizen's privilege of voting. Here each individual feels that he is himself the sovereign people; that he is obviously and directly at the moment of putting his views
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to the paper deciding the destinies of his country.' Since matters are sometimes decided by one vote 'he is bound by his duty to his race to cast his vote absolutely independently, and in the light of the fullest knowledge he can obtain'.53 In a remarkably Rousseauian passage the author maintained that to make 'freedom' the equivalent of laws one makes for oneself, there must not only be a representative system devised, but one in which the representatives would always reflect the feelings and desires of the whole peopled It is therefore doubly astonishing after such radical formulations that the book then accepts a 'weighted' vote, which has always been anathema to democrats. It argued that those classes which represented the interests of the country more than others should have more voting weight than others: In Victoria for example, the assumption is made that the agricultural interest should be given greater weight in Parliament than its mere numbers would send, and to the country districts are given more seats in proportion to the population than in the metropolitan area. Other concessions to the same idea are seen in the weight given to the votes of the propertied and educated classes in the election of the Upper Houses in several of the State Parliaments.55
The book then descended into glaring contradictions among which was its exposition of international law, whose norms were certainly not those in Australia. Following the traditional insistence that it was by being a warrior that a person showed himself to be a good citizen because the primary purpose of the state was defence, it argued that' [it] behoves every nation therefore, if it is to fulfil its raison d'etre, to be strong enough to prevent injury to any of its members; in other words to be always ready to wage war'. While inconsistent with the Hague Convention on Nationalities56 and the expressed commitment to peace of the League of Nations, it also meant a subordination of the citizen to the state. In turn, the limits of that state were racist - as many of our citations have shown. Its laws established the boundaries of what was right, and if the tendency to centralise should be opposed by an increasing social spirit, that spirit was alarmingly exclusivist towards outsiders and a defender of backward standards within. Summing up, the stress was on the notion of cooperation by the citizen and therefore the prime duty was 'to obey the laws whatever his opinions' (a far cry from Bryce) and to be ready to defend the state against all aggressors. The vote was a sacred right to be used to maintain the state: 'the Briton has made for himself a name all over the world for his interest in politics and his power to bring order out of chaos ... At
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the same time his independence is equally famous'. 57 This is an emblematic text in which, again, much important history is wrong, particularly that about the development of self-government here. But its strength is notable especially once the smug self-satisfaction about democracy in Australia is ignored. Obviously, its premise is that Australia is an ethnically British community and all rights depend on someone belonging to that community. This it has in common with the bulk of the literature we have examined. However, it slid from Murdoch's more consistent views to that of asserting to school children - the entire postwar generation - that the weighted vote was consistent with democracy. Again, when it asserted that citizen initiative in Australia was forged through participation in local government it simply misrepresented realities much better dealt with by Bland. This could only create blindness which would hinder change in the post-1948 period. It must be remembered that children were exposed to a diet of this for two to three hours a week, depending on what sort of school they attended. 58 Of course, when educational policy shifted from a more generalist to a more vocational preparation, such teaching was seen as less important. But, it remains a fact that in so far as there was a civics education taking place in the generation which came to adulthood after the Second World War it had the characteristics described. Overall, between 1901-48 the standards of self-definition in Australia grew more and more racist. The celebrated White Australia policy, which lasted until 1967, was indicative of widespread community attitudes. So, despite the formal legal rule of ins soli, the official and unofficial attitudes here were much more like those of countries of the ius sanguinis. In Australia the idea of a national family based on blood or racial ties was overwhelmingly the idea within which policy was made and opinions expressed. The 'widespread xenophobia' was not even decried until the Second World War, when attitudes began to change. Contributing to that was the weak sense of national identity due to the Anglo-Celtic rift. Certainly the Anglo majority had extirpated the major marker after colour - languages - but religion still acted as a divide. The religious tension which underlay the collective memory forged around the great battle of Gallipoli - a defeat which is symbolic in literature on ethnicity remained to remind Australians that theirs was a country of migration which could never, once and for all, extirpate minority difference. That would arrive with each new boatload of migrants. The enormous insecurity about what it was to be Australian after that identity could no longer merely be British, focused attention on admission to belonging in this country, whose exclusiveness in theory and legislation conflicted completely with its need for new population. It was not like Germany and Japan whose racist nationality standards were only threatened by
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refugees at that time. This focus on the issue of who could belong to the community obscured what a citizen could do once admitted to the polity. On the whole, the smug belief that the political system here was more democratic than elsewhere tended to end discussion or debate about that issue. This is why the views of Bland are so important as, in focusing on how much Australia fell short of British civic practice, and was therefore different, he was able to highlight what deficiencies there were in the range of possible acts here. As we will see, even this did not mean a recognition that all the Australian achievements in social rights - an apparently liberal-socialist system - hid an appalling failure to meet the essential condition for a democratic citizenry: one person, one vote, one value. Nor, in conditions of well-being and a guaranteed wage structure, did the inhabitants or their leaders feel the need to have rights guaranteed in some legislation, so that when scarcity made politics important the requisite rights to organise and act were ensured. It worked, so it was foolish to change it. Such an attitude is so inward-turned that it did not realise that citizen rights and their measure must always be turned outwards. An Australia which had nothing to learn from 'aliens' would learn very little indeed.
CHAPTER 3
Nationality and the Citizen II: 1948-1986
the men are handsome and the women beautiful Arthur Calwell, ALP Minister for Immigration, 1948
In 1948 any alien who wished to become an Australian citizen had to prove first that he or she belonged to the national family. Australian rules thus conformed to those of all nation-states by requiring that all citizens belong to the nation. In Australia the status of national was governed legally by the ius soli, but its practice and the popular understanding was closer to the ius sanguinis than to the position in Great Britain. It has been noted that much later than 1948 some Australian commentators still denned 'Asian-ness' by degrees of 'blood' and that one-sixteenth Asian 'blood' made someone an Asian. This was much less than the one-eighth Jewish 'blood' which Nazism declared made someone a Jew.1 Such a national citizen, once recognised as such by birth or by naturalisation, could engage in acts of citizenship limited by the state to which he belonged. At any given time in Australia those acts were remarkable by the degree to which they were restricted and did not meet fundamental criteria for a democratic citizen as established in contemporary theory and practice, or by 'best practice'. They did not meet the criteria for the active citizen either with regard to the vote, or the human rights required to make that vote possible. Both these facts were hardly ever addressed, above all because the relative well-being of Australia - that is the outcomes of the socio-political organisation in welfare terms - was exceptionally good when compared on a world scale. In 1870 Australia's gross domestic product per capita was the highest recorded in the world; in 1929, fifth; in 1970, seventh; and in 1980, fourteenth.2 It was easy to mistake Australia for a most advanced liberal democracy. None of its developments singled it out as particularly deserving of 84
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scrutiny or attention by a student of citizenship or civics. It appeared a solidly (approximately 90 per cent) British population, strongly, if unquestioningly, committed to what were understood as British traditions of representative, responsible government. Then began a momentous change which placed Australia, not in the rearguard of nation-states, but in the vanguard of the new globalisation. This change made Australia not the emulator of the social and political arrangements of others but a place of 'social experiment' much more important than the 'labourist' social experiment of the 1890s. The change was made by mass migration in 1948-83, which in a very short period made Australia the most multi-ethnic and multicultural state in the world after Israel. In 1981 21 per cent of Australians had been born overseas and a further 20 per cent had one parent born overseas. Only half of that 41 per cent were Britons; the rest were made up of nearly 100 different 'nationalities'. By comparison, Canada had 15 per cent overseas-born and the USA had 5 per cent. Between 1945 and 1982 five and half million immigrants came to Australia.3 So Australia was not only the first but the most affected by labour migration among all countries in 1945-83. Other states would later conform more and more to the Australian experience. While about half of its immigrants could be called 'refugees' from Hitler's regime, or from Soviet Communism, the other half migrated for work according to the patterns traced in chapter 2.4 While Australia saw itself- and usually still sees itself- as a country of 'permanent migration', these workers were itinerant along the pattern being coped with in the European Union. Australia had above-average rates for returnees when compared with Europe.5 Indeed, assisted migrants had routinely to surrender their passports for two years to guarantee that they would remain that long in Australia. There are complex and multiple reasons why and how people migrate. Certainly, there was a strong push out from some centres like Europe in 1945-65, for both economic and political reasons. What is notable is the way that Australia was compelled by international economic forces to accept first northern Europeans, then southern Europeans, and then people from the Middle East andfinallyAsia to supply its labour needs. This reality must be remembered given the racist ideological context at the beginning of the period and the Minister for Immigration's promise in 1947 that there would be ten British migrants for every other European.6 Most of these migrants were unskilled workers who in the 1950s constructed the great industrial infrastructures of the country: the power schemes, the railways and roads, and the telecommunications networks. In the 1960s those who came after them worked in the urban industries.
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Their mere presence ended the possibility of an Australian identity based on 'the Australian type constructed in terms of the white masculine outdoor person originating from the British Isles'.7 This had certainly always been a weak myth as 90 per cent of the population lived in the cities. It had become totally untenable by 1983. The very weakness of the myth may go some way to explaining why Australians and their state were so racist. Systematic genocide of the Aborigines had become a 'forgotten' history, not part of the collective myth. But racism lingered on like some displaced symptom of a repressed neurosis. Indeed, if we play a little Freudian tune with the theme of the national family, so beloved a cliche in Australian discourse, then and now, we can consider the mythical identity as one forged traumatically and through repression. In Freud, ego-identification is built in individuals and nations on repressed experiences. So it had been here. 8 Australia was suddenly changed so that in the place of a single identity described by Freud, it could only be thought of as a place of multiple identities, somewhat as Richard Rorty does.9 The first Australian response was to refuse to admit that the change was happening. This lasted formally until the ending of the White Australia policy in 1967 and informally until the return of the Australian Labor Party to government in 1972 after twenty-three years in opposition. To end the White Australia policy demanded that a rabidly racist, isolationist and smug population accept that it had something to learn from 'outside', or from the newcomers who were not British. Such recognition that non-British newcomers might have something to teach Australia occurred occasionally by the end of the Second World War. But it was not until even the Labor leader, Gough Whitlam, was ready to recognise that his own Party was 'racist before it was radical', that there was a major shift in state policy. He recalls that: As I explained to the 1970 Citizenship Convention: the fact is that for too long most Australians have assumed that the benefit of migration is all on one side. We tend to assume that mere permission to settle among us is a boon of transcendental quality, that simple gratitude and silent compliance are the sole duties of those upon whom this benefit is conferred ... We have thought it natural that migrants should be content to fill the lowest paid occupations, accept the costliest housing in the ugliest areas, send their children to the most crowded and least equipped schools and accept worse health services, worse public transport, fewer recreational amenities and poorer urban services than are available in any of the European cities and centres from which they come. Australians now have to realise that in matters of health, housing, education, social welfare and urban services Australia compares increasingly unfavourably with the very countries which provide and must continue to provide most of our migrants. We should no longer expect migrants to settle for
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the second rate, particularly when so much of what passes for our best is itself second rate by the standards of the countries with which we compare ourselves and which are in fact the countries that migrants know best.10
To explain why that took twenty-five years, we must remember the fear of difference which was so evident in Australia after the war. As a child for the first time in my life in 1952 I heard, in Sydney's Hyde Park, whites speaking languages other than English. Such people were exotic for a population which was still approximately 90 per cent British and English speaking. Pino Bosi recalls in his Farewell Australia how he was admonished on public transport to speak 'Australian'. In itself this is evidence of how important language is as an ethnic marker.11 Nevertheless, the reality was one of increasing numbers of non-English speaking migrants whom the state expected to stay. This meant a change in Australian identity which was too rapid for the hegemony of the Anglo-Celts to be imposed adequately. It imposed a changed attitude to migration, which in turn meant a recognition that migrants had something to teach the host society. This meant a view where new citizens were not just consumers of benefits and privileges, but had rights which they could assert. Official Policy In Australia the Department of Immigration was responsible for 'citizenship' matters. This highlighted how much immigration was related to nationality issues in public policy in Australia. It was through control of immigration that the borders were prevented from being too permeable. Thus, the rules about immigration are prior to and contain those about the acquisition of nationality once admitted. In altering the first rules, official practice necessarily changed in all other areas. Eventually, the change from the exclusivism of the White Australia policy to the inclusivism of multiculturalism provoked a changed discourse about citizenship itself within the official policy. The fact that this change was bipartisan - supported by all major political parties - hints at how much the changes were not primarily ideologically but structurally determined. They could only be avoided at great economic and social cost. Officially, it was the Liberal Party which ended the White Australia policy and adopted multiculturalism. The telos of this development was that from a country of ius soli which in 1901-48 had erred in practice towards the ius sanguinis, Australia became a country of ius soli whose rules about naturalisation were so open and policies so apt for the globalisation of the twenty-first century that by the late 1980s they were being proposed as models for the rest of the world.^
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The nature of the changes to the formal rules is explained by A-M. Jordens: In the process of coming to grips with, and attempting to remove, the obstacles to compliance by migrants with the expectation that they remain in Australia and become Australian citizens, the Department of Immigration gradually broadened its understanding of Australian citizenship from that of a status based primarily on British legislation and cultural norms, to one based on rights and appreciation of social and cultural diversity. Only then did discrimination become clearly visible.13
The Nationality and Citizenship Act was amended in 1955, 1969, 1973 and 1984. The changes of 1955 were minor as attitudes took another ten years to start to change. In 1955 the Act was amended to delete the mandatory requirement for a declaration of intention to naturalise to be made at least two years before the actual application. Residential concessions to the husbands and wives of Australians and to former Australian citizens seeking to reacquire citizenship were also extended. The amendments of 1969 were much more significant as these were 'fundamental to national status and the concept of Australian citizenship, as well as to the rules under which citizenship was acquired'. The words which stated that an Australian citizen was a British subject were changed to read that an Australian citizen had the 'status' of British subject. Henceforth it was sufficient to state that a person was an Australian citizen without the addition of 'British subject'. Moreover, for Commonwealth citizens naturalisation was eased to allow it to be made by notification only. Residence requirements were reduced from five to three years for aliens who could read and write English.14 In 1973 when the Act was retitled the Australian Citizenship Act, a significant shedding of the nexus between nationality and citizenship, the rules were equalised for Britons and other ethnic groups and eased for all seeking citizenship. Both Britons and other ethnic groups were required to reside only three years in Australia, and, like other ethnic groups, Britons were also required to take the oath or affirm their allegiance to become Australian citizens. After 1964 the Australian passport had its heading changed from 'British Subject' to 'Australian', and below the Australian coat of arms appeared in small letters 'British passport'.15 In 1984, following recommendations from the author of the multicultural policy adopted by the government, Professor Jerzy Zubrzycki, the Act was changed almost completely: 1 to remove the definition of British subject status; 2 to reduce the residence requirement still further to two years; and 3 to reduce the language requirement of 'adequate English' to a 'basic'
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knowledge of English. By basic was understood the competence to respond in simple English to questions about personal particulars and a capacity to answer 'yes' or 'no' to questions about responsibilities and privileges of citizenship. The amendments included the deferral of the consideration of an application for citizenship for twelve months to allow someone to meet the requirements, other than those of residence; the inclusion of the assumption that when someone was a 'permanent' resident, periods overseas during the required period of residence would be counted towards citizenship if the overseas activities were of benefit to Australia; and, finally, a reinforcement of the sections dealing with deportation. By way of a coda to these substantial alterations, in 1986 the renunciation of 'any other allegiance' in the oath and affirmation of allegiance was eliminated and citizens who had lost their citizenship under s. 17 had the resumption of citizenship made easier.16 Overall, we see in these changes the realisation by the Australian authorities that Australia was no longer simply British. This realisation is obvious from the people chosen to be the symbolic millionth and twomillionth postwar immigrants. About this S. Castles and his co-authors wrote: Mrs Barbara Porritt was a stenographer from Yorkshire who migrated to Australia in 1955. She was specially chosen as the symbolic millionth post-war migrant. The official internal Department of Immigration document at the time made it quite clear why she had been chosen. The publicity surrounding the millionth migrant has been designed not so much to play up the attractive young woman as to create interest and opportunities in other ways to bring home to the public the vital contribution which immigration is making to the development and prosperity of Australia ... a person from the United Kingdom was selected to emphasise the policy under which approximately half the intake are British migrants.
When it came to selecting the official two-millionth migrant in 1988 the image of the ideal 'new migrant' had, in some respects, been reversed. Again, not a mere number attached to an arbitrary person but a valuable publicity opportunity, the selection was one designed to fit the Prime Minister's and staffers' bill as 'a presentable, and articulate Asian, and a woman'.17 Indeed, the statistics show that by 1983-84 former Vietnamese citizens were second to Britons in being granted Australian citizenship (see table 2).18 To respond to such perceptions, the Act had thus become less and less exclusive, ending by making the 'national borders' of Australia - understood both physically and metaphorically - much more porous to the world. We note the gradual reduction of both residence and English-
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1901-1996
Table 2 Top ten countries (in order) of former citizenship or nationality of persons granted Australian citizenship, 1983-93 1983-84
1984-85
1985-86
1986-87
1987-88
Britain Vietnam Yugoslavia Italy New Zealand Philippines Greece Poland South Africa Lebanon
Britain Vietnam Yugoslavia New Zealand Poland Philippines Italy Greece South Africa Turkey
Britain Vietnam Yugoslavia Poland New Zealand Philippines South Africa Italy Greece Turkey
Britain Vietnam New Zealand Yugoslavia Lebanon China Philippines Turkey Poland South Africa
Britain Vietnam New Zealand Yugoslavia Philippines Malaysia China Lebanon Turkey South Africa
1988-89
1989-90
1990-91
1991-92
1992-93
Britain Vietnam New Zealand Philippines Yugoslavia Lebanon South Africa Malaysia China Turkey
Britain Vietnam New Zealand Philippines Yugoslavia Lebanon China South Africa Malaysia Sri Lanka
Britain Philippines New Zealand Vietnam Yugoslavia China Lebanon South Africa Sri Lanka Fiji
Britain Vietnam Philippines New Zealand China Yugoslavia Lebanon Ireland Fiji Turkey
Britain Vietnam New Zealand Philippines China Yugoslavia Lebanon Turkey Fiji India
language requirements, so that by 1983 very little was required of a newcomer to qualify for nationality and thus citizenship. Since residence and English language skills were seen as essential to prove belonging, it is striking how much they were reduced and so was the obligation to 'belong' to the previous national stereotype. By 1986 even the notion that only one national allegiance was possible was itself challenged by the removal of the renunciation clause in the oath and affirmation. Although Australian citizens still did not have the right to dual nationality and citizenship, unless the rules of their previous citizenship allowed it, it was clearly opened up as a possibility.19 The effect of these changes in a world of vast migration, in which up to 21 per cent of populations could be alien denizens, was to make Australia potentially one of the most democratic of states. This followed from the weakness of its nationalism and the permeability of its national borders it could naturalise aliens faster and more easily than could other advanced nations. Indeed, comparisons with North America are favourable to Australia although Canada did have 'dual nationality' as early as 1977.20 Of course, once admitted, the rights which such newcomers found
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were not necessarily democratic. But at least they had the possibility of equal political treatment with the natural-born, which was more difficult in other nation-states. The Act was administered by the Department of Immigration which was made up of ex-servicemen and had as its secretary in 1946-61, Tasman Heyes, who had formerly worked for the War Memorial. The main task of the department was to administer the Immigration Act, which was the vehicle for the White Australia policy and around which the self-definition of an old Australia had been constructed: a sort of white island in an Asian lake. With the war just over, the ex-servicemen of the department were understandably anti-Japanese. The department administered the Aliens Act as well. It thus controlled both entry into Australia and absorption into Australia of all foreigners. Since all natural-born were nationals and therefore citizens under the ius soli, the views of the department were crucial only where naturalisation was concerned. That is, however, the crucial act for measuring how democratic a society can be in an era of mass migration. It is the act by which the exclusiveness of a polity is measured and so is its capacity to aspire to democracy in a world of denizens. The department was the custodian of 'prevailing concepts' about who should and would have the privileges and benefits of Australian citizenship and was also in a position to change them. 21 The department effected such changes through regulations and instructions which changed from time to time. In 1949 the effect of the legislation and instructions was that an alien who had been resident for the period required and who had an 'adequate' knowledge of English by which was meant if he or she could engage in any ordinary occupation among English-speaking people, procure easily her/his everyday requirements, and explain the responsibilities and privileges of Australian citizenship - could apply for naturalisation. On passing the required tests that person would swear the following oath, or an equivalent affirmation, at an elaborate ceremony at which he or she became an Australian citizen: T [AB] swear that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, her heirs and successors according to law, and that I will faithfully observe the laws of Australia and fulfil my duties as an Australian citizen'.22 The emphasis of the Act was thus on proving and affirming that you 'belonged' and then on acquiring not active rights as equal citizens but passive rights to consume benefits and privileges. This was encapsulated in the then current idea that a bargain was being struck where the newcomer got much the better of the bargain, given by magnanimous 'old' Australians. The Minister for Immigration, Arthur Calwell, set the tone in a booklet whose contents gave 'the citizen an outline of our historical and cultural background, our social structure and mode of government,
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an appreciation of our way of life, and what Australia stands for as a nation. It will bring home to him the privileges and benefits which derive from Australian citizenship, and will better fit him to take his place as a partner in our great Commonwealth'. 23 Of course, this stress on citizenship as the consumption of 'benefits and privileges' meant that the newcomers were not seen as having any intrinsic social and political qualities and values which might enrich Australia. For many years the style was rather that Australia had attained unparalleled advance economically, socially and politically and that the bargain was that the naturalising alien should learn how those virtues had been attained. 'We might say to the immigrant, "conditions here are good. These conditions were not lightly won. We expect you to do the right thing. If you do, you will be one of us". We expect him to show that he wants to become one of us by acknowledging Australia as his country.' 24 It was assumed that aliens would have been absorbed into the prevailing Anglo-Celtic culture after five years of residence. It is notable that this refusal to learn from outsiders differed little from the view held a hundred years earlier vis-d-vis both Aboriginal social and political values and those of the continental civil law. As a consequence of the hangover of earlier entrenched attitudes that an immigrant had to show that he (sic) wanted to belong to the AngloCeltic family, any attempts to introduce a 'rights-based' notion of citizenship was stymied for two decades. Heyes did propose a rights-based charter in 1953-56 but the sad history of its rejection, even by the Good Neighbour Council, showed how deeply ingrained prejudices of an earlier era prevented any new look until two further decades had passed. When similar proposals were made in 1958 by Billy Snedden - who had worked with immigrants in an official capacity - they too suffered simi^ lar fates. Jordens recounts how the attempt to develop a notion of citizenship more appropriate to the new multi-ethnic Australian population came to nought. When the officers of the department were asked to justify the creation of an Australian citizenship in addition to that of British subject, the relevant officer could only say that it made the notion more precise as it allowed Australia to identify 'without quibble or confusion' her own people overseas. He also made 'motherhood' statements about it being evidence that Australia was a self-governing nation. A proposal for a document of citizenship provoked a negative response at the Good Neighbourhood Convention in 1955. Although it was approved in principle (five votes to three), it ultimately proved to be too difficult to decide how to implement it and the proposal was shelved. 25 There were reasons why aliens might wish to become Australian citizens. The first was to avoid the discriminatory legislation of the Aliens
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Act (1947). Under this Act all non-British migrants were obliged to register on arrival and to inform the Department of Immigration of any change of address or employment thereafter. Section 92 clearly did not benefit them. The 170 700 refugees who arrived here in 1947-54 could not change their employment without permission from the designated officers of the department.26 Robert Jackson, head of the UN Refugee and Rehabilitation Agency, recalls who they were:27 By May 1945, we had about eight and a half million displaced persons in Europe to look after. Of these, it was possible to return about six million to their own countries fairly quickly. However, no country in the world would accept any of the remaining two and half millions. Finally, in desperation, I went to Australia and approached the Prime Minister, who was a very remarkable man, Ben Chifley. Thanks to his outstanding leadership, the Australian Government immediately accepted one hundred thousand of the displaced persons and so broke the 'logjam'. After Australia broke the ice we were able to secure the agreement of many other countries in North and South America and in Europe. Mr Chifley's decisive action achieved three things - it gave new hope to hundreds of thousands of men, women and children; it provided Australia with great numbers of talented workers who have also made a unique contribution to the country's culture; and, as I have said, it set in motion a chain reaction in other countries which broke the back of the problem.28
But the rate of applications remained low in the 1950s and 1960s. By 1971 55 per cent of Britons and 73 per cent of all migrants had naturalised.29 But before 1952 less than half of all migrants declared an intention to naturalise and 75 per cent of those had not done so. Most applicants were 'deported persons' who were stateless. After the changes to the Act in 1955 which abolished the declaration of intent it was expected that more naturalisations would take place. But in 1962 more than half of all qualifying migrants had not naturalised, The reasons given were various but the notable explanation was the inability of applicants to supply the necessary reference from Australian citizens about their character. Another was the extreme difficulty experienced with the English used in formal documents. This led to reforms and simplification which resulted in more applications thereafter. Since Australia wanted such people to naturalise as part of the 'bargain', this slow rate of naturalisation pushed policy-makers to initiate partial piecemeal reforms. The administrative requirement that all migrants renounce their former allegiance was certainly an impediment but it could not be excised because, it was argued, that would encourage disloyalty to the 'mother country' and to Australia. Continuous debate foreshadowed the abolition of the clause in 1986, but it continued to be offensive to migrants that their origins made them of dubious loyalty, as
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was frequently argued.30 While it had become more and more easy to acquire Australian nationality in 1948-83, there had been no corresponding improvement in the quality or range of citizen rights once the 'alien' was naturalised. Until the election of the Labor government led by Gough Whitlam in 1972, there was even a regression in the rights a citizen enjoyed. Formal Requirements: 1948-1972 A great fissure had developed in Australian society during the Depression of the 1930s. It cracked the homogeneity of the Anglo-Celtic identity when massive unemployment made class divisions appear a primary category for understanding power in Australia. Where foreign observers had seen Australia in the early nineteenth century as being free from class conflict, the failure of industrial arbitration to guarantee a social safety net after 1928 ended that belief.31 Out of the social hardship and class divisions of the 1930s grew a militant labour movement whose leftwing trade unions were committed to the strike and sometimes to class war. By 1945 a small but significant Communist Party, which only paid lip-service to democratic norms, had also emerged. It brought a novel internationalist perspective to hitherto parochial Anglo-Celtic politics. On top of this basic fissure in Australian Anglo-Celtic identity came the emergence of women as more than the 'wives and mothers' of the nation. It came about mainly as a result of the widespread employment of women during 1939-45 when male workers were absent as soldiers and industry grew. There had been earlier feeling of commonalty with the Aborigine minority which ended the shared racism of the post-Federation years.32 These challenges to national homogeneity were already there when nonBritish migrants started to arrive in great numbers after the Second World War. Combined, they provoked a restriction of citizen rights as the AngloCeltic ruling class reacted to them. The latter identified the national enemy after the war as the international Communist movement led by the USSR, taking sides with the United States in the Cold War period. All adherents and sympathisers with Communism, or the left of politics, or those who came bearing political values which were radical, became suspect for the Liberal governments who ruled Australia in 1949-72. Even the innovative thinkers of the Journal of Public Administration, discussed in chapter 2, became such strong anti-Communists, and then anti-Labor spokesmen, that they were prepared to restrict citizen rights to defeat what they saw as the totalitarian centralisation of Labor. In the late 1940s and early 1950s the right to freedom of conscience, expression, and industrial and political organisation were constantly challenged by the state, which increasingly
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resembled the 'police state' denigrated by Bland and others during the war. The defence of rights became increasingly associated with the left of Australian politics. Brian Fitzpatrick, who had founded the Council for Civil Liberties in 1936 and was a 'fellow traveller', wrote several books describing this climate. In these books he maintains that ever since Federation there was an all-parties trend, towards the restriction of democratic rights. Commonwealth policies relating to civil liberties show a continuity ... It is seldom that parliamentary party battles were fought over a democratic principle, or over hurt done to an individual or a group, against democratic principle, by a government. Positive legislation contrary to democratic theory, even, was passed from time to time at the instance of Labor as well as anti-Labor governments ... When in 1940, in wartime, the Menzies conservative government introduced a second National Security Act, empowering restrictions and repressions more burdensome than any that had been known in Australian law, it became evident that the bills of 1916,1920,1926,1932 and 1935 had planted a powerful authoritarian seed, in parliamentary ground ploughed and fertilised by Labor as well as Labor's opponents ... all parties inclined more and more towards a conception of civil order which bore a closer likeness to the European police-state of Bismarck's pattern, than to the institutions of personal freedom which were supposed to be integral to the British system of government.33 By 1956 when his Australian Commonwealth: A Picture of the Community
1901-1953 appeared, it covered the attack on civil liberties since the war. Fitzpatrick then wrote: 'those responsible for the conduct of Australian affairs have not been much fortified by the strong tradition of government by moral precept... which ... informed all Chinese thought. Greek notions of political propriety, too, were alien to Australian oligarchs'. For, having made the only close critical study of Australian democracy from the point of a civil libertarian, he knew that democracy was a farce in Australia.34 Then, such views were dismissed as mere left-wing hysteria, but today the covert and open attempts to control freedom of conscience and expression are well known.35 Moreover, when Britain is the most offending country against the European Convention on Human Rights of all European nations belonging to the Council of Europe, it is difficult to believe in the superiority of British traditions of common law. British freedom and tolerance themselves can no longer be taken for granted.36 The most clear attacks on citizen rights in Australia began when Communists were jailed in 1949 for views expressed in their press or in interviews. The accused were charged under sections of the Crimes Act (1932) dealing with seditious intent and sedition. Gilbert Burns had stated that in the case of war the Communist Party would fight 'on the side of Soviet Russia'. The Communist leader, Lance Sharkey - in an
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FROM SUBJECT TO CITIZEN: 1901-1996
interview which savoured of entrapment - had stated that: 'If Soviet forces in pursuit of aggressors entered Australia, Australian workers would welcome them ... I believe the Soviet Union will only go to war if she is attacked and if she is attacked I cannot see Australia being invaded by Soviet troops. The job of Communists is to struggle to prevent war'. In both cases the High Court, despite no incitement of violence or any apparent correspondence with the requirements of ss. 24B, C, D, G of the Crimes Act, found Burns and Sharkey guilty.37 These successful attacks on freedom of speech showed how poorly the law protected that basic freedom here. More significant was the attempt to ban the Communist Party and all its associated associations, including trade unions, in 1950. This was done using the wartime provisions under the defence power, effectively treating political dissidents as 'internal' enemies only five years after the Holocaust and the Nazi concentration camps. Many migrants came with the fear caused by such experience. While the government legislation was held ultra vires by the High Court, the latter did so on a legalistic reading of the relevant sections of the Constitution and the legislation. In this case, the court was obliged by the rules of its own profession to accept a majority view against the state. The defence power concerned matters which happened in wartime and not in peacetime. Only Latham, the ChiefJustice, was ready to argue that the Cold War was a situation which allowed the extension of power by 'reciting in' the supposed enemies of the state. 38 In the Sharkey case Latham had told a jury that it was entitled to take into account the common knowledge of 'the acute tension between Soviet Russia and the powers with which Australia is most closely associated'. Relying on the widespread hysteria about Communism, the Liberal government then attempted to secure popular endorsement for an alteration to the Constitution which would allow a ban on Communism. Its 'Yes' case literature set the tone. It spoke of the deadly dangers of war fomented by Communism and that, as it was a national danger, it had to be smashed. Strong Labor Party opposition to powers to catch practically any critic of the state saw the referendum lost by a small percentage of votes.39 In 1955 the state set up a Royal Commission into espionage designed to catch Communists and their sympathisers. While it has since been seen as highly dubious in procedure and goals, and in its handling of evidence, then it was sufficient to start a significant flow of intellectuals, scientists and others out of Australia. By 1958 it was clear that such direct attempts to ban political organisations had failed, but they had highlighted how poorly Australians were protected in fundamental democratic citizen rights by existing laws. Indeed, Liberal control of Federal Parliament and its privilege vis-d-vis other organisations led to bizarre attempts to control criticism of its
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members using completely outmoded rules. This masqueraded as a defence of British constitutional traditions which emphasised the need to protect the dignity of parliament. In 1955 two journalists were brought before the House and sentenced then and there under s. 49 of the Constitution, without trial, to three months'jail for contempt of parliament. Appeals to the High Court and the Privy Council were unsuccessful. They had alleged in the Bankstown Observer that the Minister for Immigration had been obtaining naturalisation permits for aliens for a consideration, in other words, that he was involved in a racket. Without doubt, they were muckraking journalists. Ignoring expert opinion that there was no contempt of parliament, the Prime Minister, Robert Menzies, led the action against them. He stated: 'Having quoted Section 49 of the Commonwealth Constitution, I went on to refer to the very sound principle that, unless, Parliament itself remains an institution in which members are free to speak, it ceases to perform one of the greatest functions of the Parliament, which is the free expression of opinion and the free debating of ideas concerning the public good'.40 One of the earliest books on the subject of citizens' rights and the legal system, Freedom in Australia by E. Campbell and H. Whitmore, commented that all this history of jailing for expression of opinion, bans on political organisations, and denial of (in the opinion of many) fair trial, showed how poorly protected citizens were by the common law. In many instances, the common law of Australia was much inferior even to the British tradition it emulated.41 Yet the response of Robert Menzies, the Australian Prime Minister from 1949-66, was to entrench the common law traditions. This typified the response of the Anglo-Celtic leaders, strongly racist and xenophobic, to the challenge of difference: class, gender and ethnicity. In doing so, they revealed how much the refusal to modify the Anglo-Celtic model of identity led almost directly to restricted political rights for citizens. Indeed, since their views were shared by many Labor leaders at that time, it is interesting to note that Dr Herbert Evatt, Menzies' arch-rival as leader of the Labor Party, also encouraged reliance on the common law. Yet he had been a founder of the United Nations and was instrumental in drawing up its Declaration of Human Rights and in having Australia sign it. When Menzies stated so adamantly that the common law was all that Australians needed, he knew it was a much less expansive law than that of the mother country. As counsel in the Engineers case of 1920 he had been instrumental in creating the legalistic interpretation of the Constitution. This amounted to reading that document, not as containing any implicit premises but according to the 'natural' meaning of the words in it. Critics would state that this was to read it as if it were the Dog Act and not the highest law of the land which was also a political document.
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FROM SUBJECT TO CITIZEN: 1901-1996
Menzies drew inferences from his attachment to the common law in a celebrated address at Harvard in 1964 where he explained that it meant that Australia had no need for a bill of rights. 42 In this lecture Menzies stated that he was glad there was no definition of individual liberties in Australia, because to define such liberties was 'to express them so broadly that the discipline which is inherent in all government and ordered society becomes impossible'. We have seen similar sentiments expressed by his close associate and ChiefJustice, Sir John Latham, in the 1930s. They were general even among less conservative members of the High Court. Menzies was able to cite a speech by Latham's successor, Owen Dixon, to the American Bar Association in 1942, which also supported his view. Such a definition of liberties showed a 'want of confidence in the will of the people'. Then Menzies moved on to what was crucial to practically all of those who maintained that British common law traditions were sufficient without any bill of rights: that the Australian people had political control through democracy and responsible government of all legislation and government action: Should a Minister do something which is thought to violate fundamental human freedom he can promptly be brought to account in Parliament. If his Government supports him, the Government may be attacked, and if necessary defeated. And if that, as it normally would, leads to a new General Election, the people will express their judgment at the polling booths. In short, responsible government in a democracy is regarded by us as the ultimate guarantee ofjustice and individual rights. Except for our inheritance of British institutions and the principles of the Common Law, we have not felt the need of formality and definition.43 This states in crystal-clear form the conservative position about citizen rights in Australia. They all depend on power from below, which Australians had. It was a constant litany both from politicians and the judges they empowered to interpret their actions. For example, in the Communist Party case, Chief Justice Latham argued: it is not for a court ... to ask or answer the question whether or not it agrees with the view of Parliament that the Australian Communist Party and organisations and persons associated with it are enemies of the country. It is for the government and Parliament to determine that question and they have already determined it. Whether they are right or wrong is a political matter upon which the electors, and not any court can pass judgment. The only question for a court, therefore, is whether the provisions of the Act have a real connection with the activities and possibilities which Parliament has said in its opinion do exist and do create a danger in Australia.44
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So, having determined the rules of the game by giving the Constitution a particular meaning, politicians and judges could refer to one another in a sleight of hand which hid the disingenuous claim that democracy ruled in Australia. Both knew that this was false. Were it true it would have made Australia at least as advanced as any other nation-state in its citizenship rules. Since Constant, it had always been asserted that democracy drew the line between the public and the private, and thus determined what rights should and could exist. We merely note here that that would not have ended the question as it begged the prior question: should the standards be those of the national democratic citizenry, or a wider regional or global citizenry? That it is the vote which guarantees all the other rights and an inviolable private realm has been an impeccable argument from Aristotle to the most up-to-date theorists of democratic citizenship. Clearly, Menzies and others who maintained that democracy ensured power from below in Australia, did not understand that implicit in that notion is the corollary freedom of conscience, expression, organisation and freedom from economic and social want as its very premise. This was, for example, the view of the liberal-social political theorist, Bobbio, and even early Australian liberals like Alfred Deakin. The determined adhesion to the common law and British traditions, even while Australian society changed radically, amounted to a denial that Australia had anything to learn from outside. It thus meant that no alien newcomer was ever seen to have any rights which were inalienable. In a sense, Menzies epitomised the last-ditch defence of the AngloCeltic identity of Australia, and revealed how much that was related to the concrete nature of citizen acts permitted in Australia. These, as we have seen, did not always even guarantee the rule of law understood as equality before the law, if not in it. Menzies posed as the defender of the 'forgotten' people, who on closer examination turn out to be the AngloCeltic middle classes of Australia who felt threatened by the new ethnic working classes. In fact, the dominant place of the Anglo-Celts was fast disappearing in a new world of difference. Their defence of a Constitution which gave 'legalism' a central place in constitutional matters could be seen ever more clearly as a defence of an anachronistic power system. The 1901 Constitution was the work of a homogeneous Anglo-Celtic majority and therefore no longer appropriate to Australia.45 Among the first to realise this was Gough Whitlam, who was elected to Federal Parliament in 1952 for the Australian Labor Party. While not entirely different in background from Menzies and his followers and their disappearing Anglo-Celtic world, since he was also an Anglo-Celt and a lawyer committed then to British traditions of common law and responsible government, Whitlam represented the electorate of
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Werriwa. By 1969 in that electorate 150 000 of 250 000 inhabitants were under 21 years of age or were migrants who were excluded from citizenship and the vote. Since, as Whitlam recalls, they were almost certain to be Labor supporters and, whether naturalised or not, took up most of his time, he in fact represented the new multicultural Australia long before it became known as that. 46 When, in 1967 he became leader of the Labor Party, replacing the former Minister for Immigration, Arthur Calwell, the commitment of that Party to the continuation of the Anglo-Celtic ideal of national identity was over. With him came younger men, devoted to the notion of building an Australian identity based on its multicultural origins, like Whitlam's Minister for Immigration, Al Grassby. Grassby simply found the Department of Immigration 'racist' and vowed to reorient Australian attitudes. As he said: 'Australia is a nation of immigrants and the descendants of immigration. Our national character has been determined by the inter-action of the diverse elements of population who came here in the past from many countries and by their experience after they came here'. 47 Just as the commitment to Anglo-Celtic standards led to blindness about the closures and failures of the Australian political system, so the new 'multicultural' view went with opened eyes. As a lawyer, Whitlam had been aware of the limitations placed on the active rights of Australian citizens by the Constitution and the case law which had been based on it. As early as 1957 he had typified it as a 'Constitution against Labor'. By 1977 he had recognised that whatever use a lawyer could make of its powers, it would have to be radically changed if democratic safeguards in the electoral system were to become entrenched rights, if the cause of liberty and justice were to be promoted, and if Australia were to be 'free ... from the last relics of colonialism ... and to attain a true status as a free and independent state'. By 1977 he had decided that 'Labor's present task ... is to re-fashion the Constitution along democratic lines and entrench in it the basic rights and freedoms which citizens in any democracy have the right to expect'. By 1975, if not earlier, it was clear to the Labor side of Australian politics that the premise for Menzies' refusal of a bill of rights, the vaunted democratic power of the Australian people, was not guaranteed by the common law and British traditions alone. Whitlam wanted a bill of rights 'on the American model'. Indeed, he saw the institutional expression of the common law, the High Court, as the main problem for citizen rights here. In turn, he believed that its power was due to the federal system, and so favoured a centralised unitary state in its place. 48 His goal was positive equality: the values of liberal socialism. 'What we aim at is the achievement of the classical liberal idea of the career open to talents - equality of opportunity in a vastly expanded form.' 49
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The ALP led by Whitlam came to power in 1972 after having been in Opposition since 1949. When we look at the legislation which Whitlam himself lists in his memoirs of his term in office, we can see that it was nearly all directly or indirectly related to making an active Australian citizen whose rights matched those of international 'best practice'. The attempted innovations, arranged to suit our theme, covered: migrants, Aborigines and racial issues, women, electoral laws, and various aspects of social security.50 Some of those many themes are covered in detail in later chapters, as they attempted to end the criteria of belonging based on race, both through the White Australia policy and as racial discrimination against Aborigines which excluded them from active citizenship; and a determined attempt to make Australian democracy real by returning power to the popular sovereign through adequate electoral laws. As Whitlam noted: 'The conservative advantage in Australian elections was not maintained solely by boundaries but by a multiplicity of electoral laws. Nearly all of them worked against the ALP'.51 He felt strongly that: 'The clear Labor majority of the two-party vote meant that Evatt should have been Prime Minister in 1954, Calwell in 1961 and Whitlam in 1969. In each case we were prevented from assuming government by distortions in the electoral process'.52 The major area of innovation which had significant effects on citizenship standards in Australia was that which opened up as a result of Australia's new international status and growing sense of nationhood. As we will see in chapter 5, it thus proved double-edged. But, for the first time the notion that 'aliens' already had rights established in fora wider than that of Australia was openly admitted. A global reference became possible in place of the provincial, parochial standard of the nation. This meant less reference to a history which always had to be irrelevant for newcomers and more to contemporary political practices. International Personality and Nationhood
The sense of a nationhood separate from that of the Anglo-Celtic mother country could not have been relevant without the formal legal conditions for its expression. These started with the Westminster Statute Adoption Act of 1942 which adopted the British statute of 1931 of that name and made it retrospective to the beginning of the Second World War. With its passing Australia subjectively attained 'international personality' as a state among states. The British statute created dominion status for Australia and effectively ended (ss. 2 and 4) United Kingdom paramountcy in law. Section 3 stated: 'It is hereby declared and enacted that the Parliament of a Dominion has full power to make laws having extraterritorial operation'. Thereafter it became possible for the High
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FROM SUBJECT TO CITIZEN: 1 9 0 1 - 1 9 9 6
Court to read the entire history since Federation as the emergence of a separate 'national identity' from that of the British loyalist Anglo-Celtic past, although there had been little attempt to assert that in earlier decisions or literature. So Whitlam's Attorney-General, Lionel Murphy, claimed as a High Court judge in 1976 that: The paramount force and the imperial parliament no longer exist for Australia. Australia is an independent and equal member of the community of nations. Its relationship with the United Kingdom has long since ceased to be imperial/colonial and is now international. The change in relationship was not brought about by the Statute of Westminster 1931, which was adopted by the Australian Parliament as a practical measure to remove doubts as to the validity of certain Commonwealth legislation, to obviate delays occurring during its passage to effect certain related purposes during wartime (see Long Title and Preamble, Statute of Westminster Adoption Act 1942). The Statute of Westminster dealt with constitutional forms not substance, as was well recognised at the time ... Despite the importance of the Statute of Westminster, a case can be argued that Australia's independence and freedom from the United Kingdom legislative authority should be taken as dating from 1901. The United Kingdom parliament ceased to be an imperial parliament in relation to Australia at the inauguration of the Commonwealth.53
In fact, until the return of the Whitlam government, his view had not prevailed in the High Court. The presence of Australian delegates at Imperial treaty negotiations from the First World War onwards certainly signalled a change in practice, but this was not understood as severing the umbilical cord, even by the ALP. Legal decisions in the 1930s about Australia's capacity to use the external affairs power (s. 51 (29)) of the Constitution to enforce outside standards on the States had been inconclusive.54 It was not until 1974 that the Commonwealth started gradually to reassert the legal right to exclusive jurisdiction over areas covered by international treaties which it had signed. These were extended from treaties properly speaking - as between states - to international conventions setting standards for human rights, covering matters ranging from race to the environment. The substance of cases in 1974 to 1983 was that when the Commonwealth signed an international convention under s. 51 (29) it obtained jurisdiction in that area, could legislate in it, and the States were then bound regardless of the apparent constitutional division of powers in that subject matter between Commonwealth and States.55 In a landmark decision in 1995 the High Court decided that even where not enacted in Commonwealth law, such international rights under treaty had to be observed by officers of the state. The implication of all these cases is discussed in detail in later chapters. For our immediate purposes, what needs to be noted is that to assert Australian international personality, the High Court had to admit that rights
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were established internationally and accept a rights-based notion of citizenship. Becoming an Australian did not render a past tabula rasa or mean turning one's back on previous values from the moment of naturalisation. The overall effect of these decisions about legislation introduced by the Whitlam government and later was to end in Australia the notion that loyalty to Australia also meant loyalty to the Queen of England. It was an incomprehensible association for many newcomers, who often had no monarchs in their countries of origin. This was formally recognised in the Australia Act of 1986 which ended all appeals to Great Britain and made Elizabeth II the Queen of Australia. Of course, it still left the problem that loyalty to Australia was exacted, even if Whitlam's 1970 exhortation to learn from outsiders meant that Australia finally recognised that all the privileges and benefits were not on one side. Unfortunately for the development of Australian citizenship rights, Whitlam faced implacable hostility from the traditional Anglo-Celtic (in Scottish mode) rulers of the country. After three years of innovations, they had him dismissed by the Governor-General whose commitment to the Anglo-Australian identity was more fervent than that of Menzies himself. The Governor-General, Sir John Kerr, came from the Celtic Labor (on the maternal side) side of that duality.56 Using precisely the institutions which Whitlam wished to change to return power to the people, in 1975 he dismissed the ALP from office. Whitlam's projects were thus merely a premonition of what would be done to a lesser extent under the ALP governments of Bob Hawke and Paul Keating after 1983. Unofficial Discourse on Citizenship To some extent we can gauge how popular opinion was, in fact, changed during the Whitlam period. After expressing the same view which it had in 1948 up to the mid-1960s, the press started to reflect a change in popular attitudes. It is notable that by that time there was a large ethnic press comprising both western and eastern European-language newspapers, as well as some from Middle Eastern and Asian communities.5'7 In the early 1950s the self-congratulatory tone of an Australia which offered so much to wartime refugees was overwhelming in the Englishlanguage press. Descriptions of naturalisation ceremonies dwelt on the newcomers' 'promise' to fulfil their duties as Australian citizens. As they wrote, they signed away their past: 'they were no longer Greek or Austrian, or German or Polish or Hungarian when they stood up. They were AUSTRALIAN'. They had been given freedom of thought, religion and speech and 'freedom from fear'. There were stories of Adam Kriegel, a Resistance fighter, of Veronica Kolman, whose father was sent to a
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concentration camp and so on (Sydney Morning Herald, 29 March 1952). In 1955 Harold Holt, Minister for Immigration in the Menzies government, still used the family metaphor in this way: 'I am convinced that the Australian Commonwealth family could be enormously strengthened and enriched by a more effective dispersal of people of British stock in the countries of the Commonwealth' (Sydney Morning Herald, 26 and 27 January 1955). By 1963 there had been a change from the 'turning the back on the past* position of the 1950s. It was recognised that 'no migrant is expected to disown his former cultural identity' (Sydney Morning Herald, 20 and 22 August 1963). This may have been prompted by an increased awareness that they could not do so even legally as several cases had occurred in the interim where naturalised Australians had been subject to the law of their country of origin because it did not allow relinquishment of citizenship, or even dual citizenship (West Australian, 12 June 1964). Such views indicated increased academic questioning about the wisdom of assimilation or integration rather than multiculturalism.58 At this time, a common reason given for the refusal to naturalise was that Australians still did not make newcomers feel at home (Advertiser, 14 January 1965). 59 As against the greater openness, the abiding position of the conservative Anglo-Celtic leadership remained like that of Air Marshal Sir Richard Williams, who when addressing the Citizenship Convention of 1965 stated that if unwilling to naturalise, aliens should be told 'good bye' (Age, 21 January 1965). The theme of 'belonging' was still strong, but (by 1965) it was to an Australian rather than a British model and the mood was more and more critical of past closures (see the article by P. Morawetz in the Australian, 22 February 1965). Open criticism of the mythical image was starting, together with that against the White Australia policy and all that was British.60 The general media approval of the softening of the citizenship admission criteria, discussed earlier, even led to assertion that it was intolerable to exclude aliens on the grounds of Communist sympathies (Canberra Times, 14 November 1970). When Grassby made clear that after 1973 the British would not be privileged and that Australia would welcome immigrants from races other than Europeans, the press simply noted that it marked a move towards Australian independence and maturity. Grassby's assertion that 'Every Australian is really a migrant. We are all minorities. I like to remind people that in 1788 all Australians were black. We are a nation of migrants' (Age, 13 February 1973), certainly drew the fulminations of traditionalists. It was, however, true. The latent contradiction in it - which would be clear by the late 1980s - was that the fruitful notion of multiple identities ('many races') was still coupled with that of a nation understood as
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'one big family'. The first idea was remarkable in its innovativeness but it was difficult to reconcile with the ALP understanding of the second. It led to infinite problems when nationality and citizenship rules were changed to end the earlier confusion of those notions. On Australia Day 1974 Grassby called on everyone to 'celebrate it by making someone who is not yet an Australian citizen feel a member of the family of the Australian nation. Help them to become a citizen'. The readers were asked to show such people a coupon which began: 'Belong to Australia - as a citizen' (Sydney Morning Herald, 26 January 1974). Nevertheless, under his ministry remarkable innovations were made consistent with the premise of multiple identity. First-, second- and thirdclass citizenship, which resulted from cases like Walsh and notions that 'once a migrant always a migrant', was abolished. The right to deport under the Immigration Act was modified. When it was suggested it be replaced by an 'apprentice citizenship', the Australian Financial Review (25 March 1974) even stated that it would be a disguise for a renewed White Australia. The Australian equated being a 'good citizen with being an Australian national' with Dr Johnson's notion that patriotism is the last refuge of a scoundrel (29 December 1975). By 1983 the press even argued that the existing oath of allegiance was something which prevented many Asians naturalising and it was therefore time to abolish it - which was done (Age, 28 June 1983). Naturalisation Rates and Belonging What should have been obvious from examination of the naturalisation rates by the end of the Whitlam government in 1975 was that the demand that an 'alien' 'belong' to a national 'family' was no longer useful in a multicultural society. Yet this was avoided by an ideological use of figures which showed a 40 per cent resistance to naturalisation among those eligible (see table 3). A Department of Immigration survey in 1971 identified one of the main reasons for this as the oath of allegiance. 61 Jordens writes: Most surveyed saw few disadvantages in being naturalised, but the objection most commonly referred to was the loss of their own nationality and of pension rights in their own country. Of those who commented adversely on the rights and obligations of citizenship, most said either that the 'rights' accruing upon naturalisation were of little practical value, that it was most difficult to accept the need to swear allegiance to a non-resident English monarch, or that they found it difficult to explicitly renounce their country of birth. Few, she states, valued the right to vote. It is perhaps worthwhile to consider this last piece of information.
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Most European postwar migrants had no experience of democracy whatsoever, since their countries had been Fascist or Communist. In many of those countries democracy had to be relearnt after the war, and the new state worked hard at that in some cases. There were significant successes, for example, in Italy and Greece. The ALP interpreted the reluctance to swear the oath as meaning only that the British definition of 'Australianness' was incomprehensible. This could have been true for 31 per cent of those who refused to naturalise. However, even after the assertion of a multicultural identity and a rejection of the stereotypical Australian identity model in 1972-75, the other 60 per cent of British and New Zealand origin continued to refuse to naturalise. For such people, the explanation of the incomprehensibility of the British connection could not hold. In fact, for them the problem was rather the assertion of the new multicultural identity. They made clear their resentment of the supposed privilege accorded to non-Britons, or to 'old Australians'. The explanations each gave for their refusal to naturalise are illuminating. For example, Italian 'new settlers' from the ACT, when interviewed, said: 'I'll tell you simply why Italian migrants don't naturalise here ... It is because even if we do we are still bloody Dagos'. 'We are not made to feel Australians, so why should we become Australians?' And how could they in a society where the Minister for Immigration in 1968, a progressive Liberal who had been an immigration officer in Italy, could still say, even in joke, that there were three important things about being Australian: 1 First that Phar Lap was the greatest horse that ever was; 2 Secondly, the Fifth Test in England is coming up. It's only cricket but it's very important ... every night you should pray that Australia wins the toss and bats first, and then it rains and England bats on a sticky wicket. 3 Thirdly, if you are in Melbourne you barrack for Melbourne in football and if you are in Port Pirie you barrack for Ports. If you do all these things you are an Australian.62 On the other hand, when such stereotypes were replaced by the multicultural model a correspondent of British origin explained that when people like him were reluctant to become citizens it was for the following reasons: 'The British migrant asks with anxiety and with reason for some guidance: some explanation of the changed circumstances. He asks whether the British heritage is now less valued'. Pointing at the 'executive' nature of the changes he wondered what the British stood to lose. 'I'll dismiss as enthusiastic thoughtlessness the implication that we may lack allegiance to Australia. Mine is by no means a distinguished
Table 3
Citizenship rates (%) by year of arrival and birthplace (overseas-born only) (pre 1971-91)
Birthplace Prior to 1971 1971-75
Main English-speaking countries a Oceania and Antarctica (excluding New Zealand) Europe (excludirig UK and Ireland) USSR and Baltic States Middle East and North Africa South-east Asia North-east Asia Southern Asia South and Central America and Caribbean Africa (excluding North Africa and South Africa) Other Total overseas-born Notes:
a
Year of arrival 1981-85 1986-87
1988-89
1990-91
Totalb
55.3
51.4
46.2
43.5
31.0
13.7
4.7
46.5
93.3 85.8 97.3 93.2 88.5 92.8 90.7
91.0 76.8 92.2 90.3 88.9 89.0 92.2
80.3 69.8 98.1 91.2 91.0 89.9 82.9
63.3 66.3 88.7 84.1 83.2 79.4 75.9
50.7 54.2 76.9 79.9 64.1 54.7 64.7
26.7 29.3 33.3 47.6 28.3 21.0 27.6
10.5 6.7 3.2 8.7 2.7 3.5 2.8
61.2 80.0 89.0 80.6 62.8 47.0 65.6
85.4
82.3
72.4
59.9
46.2
21.9
3.3
58.8
90.1 81.8 73.1
89.5 81.6 67.8
85.7 84.3 67.3
81.0 75.3 63.5
62.5 55.2 50.0
31.0 38.1 22,7
4.0 7.6 4.4
72.5 73.9 61.4
Includes UK, Ireland, USA, Canada, South Africa and NZ Includes 'not stated'. Table excludes overseas visitors. Source: 1991 Census Matrix Table CSC6171. b
1976-80
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show of allegiance, but includes service in the war, 26 years of responsible, tax-paying citizenship, 23 years of RSL membership, 10 years as a justice of the peace and a measurable contribution to both industry and community ...\ 6 3 Again and again, as multiculturalism emerged as state policy in response to large-scale immigration, commentators and letter-writers of the press called into question the notion of a single Australian identity; often only then to fall back into that besieged cliche. Typical of such articles is that of Paul Morawetz in the Australian (22 June 1965). Morawetz was irritated by a politician's assertion that unAustralian meant anyone 'agin the government' and wrote in reply: there have been several attempts in literature to present the archetype Australian. A hard shell, a rough manner, a casualness in social intercourse, a critical independence, and egalitarian arrogance and a good nature. The frontiers of international understanding are being continually widened. A good citizen tries to understand his neighbour across the street, as well as his neighbour across the sea ... Jingoism is no substitute for thoughtful citizenship.64
Morawetz was certainly thoughtful in his further argument that national character had to be conceived as something continually being constructed in which those already included in the community would learn from those who continually joined them. We might add: in proportion to their numbers. His thoughtfuiness was not emulated in the 1980s when a jingoistic nationalism, fostered by the ALP under Bob Hawke and Paul Keating, emerged to match that of Menzies earlier. In the place of the British model they substituted a fixed Anglo-Celtic model which owed more to the Celt than the Briton. Such jingoism reached its heights during the Bicentenary celebrations of settlement in 1988. This led to a new series of closures to new theories of citizenship coming from overseas. After 1983, instead of continuing the Whitlam openness Australia's frontiers were seen as something to be made increasingly impenetrable from outside. As migration fell off citizenship requirements again tightened up. For the first time, in the late 1980s Australia became the object of significant international criticism for breaches of human rights and cavalier disregard for them in the region. Democracy was certainly tempered by the 'rate of exchange'. Closures to Theory
During the Cold War when the Liberal Party governed, the rather progressive tradition of Australian liberalism going back to Deakin and passing even through conservatives like Bland and his fellows, gave way to
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such a fear of Communism that that tradition was discarded in favour of a war against the 'internal enemy' of Communism and the trade unions. By implication the Labor movement and the industrial arbitration system were caught in the web of criticism and their crisis and loss of relevance in the 1980s is partly explained by their failure to maintain the 'liberal socialist' tradition in debate. Even those organisations set up in the 1930s to protect civil liberties, like the Council for Civil Liberties (1936), directed their attention more and more to defence of such liberties against arbitrary or harsh police action against leftists. Their pamphlets did not concentrate on fostering 'active' rights like the equal vote.65 The progress of the group surrounding the Journal of Public Administration is indicative. In the immediate postwar years it was still a strong advocate of reform at federal level to make democracy more real. In Changing the Constitution, one of the journal's publications in 1949 when the Menzies-led attack on Communism started, the group's emphasis was still on the need for democratisation and a national convention which was 'popularly elected'. If the target was still the centralising 'socialist' government, the counter was clearly 'popular liberties'.66 They were justly fearful that the administrative regime introduced during the war would continue afterwards. This made them early protagonists of administrative law, then in its infancy in common law countries. Their concern for a federal division and extension of powers through new States was salient.67 Many contributors agreed that the state needed to 'plan' but argued that it should do so 'in consultation' with the people, rather than by elite decision.68 But its leaders had entered into a dubious association with the League of Rights, led by Eric Butler, whose goal was to restrict the will of the majority, and by 1955 the tenor of their position had changed. In conference proceedings, published as Liberty in Australia, in which intellectuals alarmed by Menzies' measures discussed their import, Bland and his supporters warned against the new despotism of the welfare state as a creeping totalitarianism - much as Menzies did. So, when Bland argued for a defence of the people and minorities against centralisation and urged the introduction of a 'charter of human rights' in a reformed Constitution, he saw it as protection against compulsory unions, control of the press, acquiring property without compensation and the compulsory vote.69 There were certainly warnings against McCarthyism in Australia, but this was now accompanied by suggestions that some political groups 'were too intolerant to be tolerated'. 70 This intimates how much many progressives were enmeshed in the common law notion that every right had a corollary obligation; that all had to be weighed against each other; and that the law itself was the
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ultimate arbiter. The notion of an inalienable right which was never in any market place or subject to cost benefit analysis was still strange. Even the key address at this conference by the gifted social philosopher, Professor Perce Partridge, expressed its opposition to state surveillance and a ban on Communism by reference to the tradition of civil liberties developed by the common law and not by the richer rights-based notion of a politically prior bill of rights. He did, it is true, share the position of activist judges like Brandeis in the case of Whitney v. California: to courageous and self-reliant men, with confidence in the power of free and fearless reasoning apparent through the process of popular government, no danger flowing from the process of speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there is time to expose through discussion the falsehoods and fallacies, to avert the evil by the process of education, the remedy to apply is more speech not enforced silence. Only an emergency can justify repression.71
Yet Partridge must have known that the High Court judges here had decided the opposite when they justified jailing Communists for free speech on the ground that the situation of the Cold War was like war.72 It is notable therefore that at this conference the young Whitlam indicated that he already believed that the limitation of citizen rights in Australia was due to the dominance of common law reasoning concerning matters political. He was stung by the attacks on centralisation and attacked the friction of federalism which was interpreted by lawyers. 'We run the risk that we shall be granted only such liberties as commend themselves to lawyers.' To protect freedom he wanted 'one vote, one value' introduced. The statistics are arid but eloquent. There is no country which calls itself a democracy, which upholds the ideal of liberty for majorities as well as minorities, where Parliamentary government is so ineffective as in the Australian States to express the wishes of the majority and to preserve the rights of minorities ... I suggest that as long as we have seven Parliaments instead of one, we should at least have the safeguard in our Constitution that electorates shall be of equal proportion.73
The strongest reassertion of the 'liberal-socialist' theory of citizenship during the Cold War years came from Frederick Eggleston. He took a totalising view of what should be done in Australia starting from the premise that 'the Liberal must always realise that Liberal democracy cannot be served unless there is a high standard of citizenship in the community, a determination to realise ... social values'. The core goal was
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'Democracy or else'. Democracy was clearly governed by a rule of law and was representative. Where it existed and there was popular sovereignty there could be no danger from democratic socialism or planning. There would only be a pace towards socialism which was human. Like his predecessors, Deakin and Hobhouse, Eggleston felt that liberty without cooperation was 'as dead as faith without works'. Indeed, if citizens were not to be guided by 'organised selfishness', education, health and social security should be seen as rights. His emphasis on the active citizen made him very aware how 'incomplete' Australian democracy was due to malapportionment. He was also sceptical about the rule of the judges and the 'legalism' of state and peopie. Of course, as a child of his time, Eggleston still started from the premise of an essentially homogeneous Anglo-Celtic Australian society and thus had no problem with a patriotism based on 'loyalty to the Queen'. Other traditional ideas occur in his book as well. On the other hand, his remarkable perceptiveness led him to identify as a major problem in Australia the absence of an intellectual voice which might shape opinion: I am very much afraid that we in Australia have left leadership in great moral and intellectual issues to older centres of culture. No country can afford to do this. Even scientific leaders, several of whom have been produced by Australia, have found their scope elsewhere, but on the side of philosophy it is hard to find any contribution that Australia has made or is preparing herself to make. Our universities tend to become vocational schools for the learned professions and provide no forum for the discussion of the great questions of the day. Academic freedom seems to be construed as silence or neutrality. Without leadership of this kind our culture must starve, for, while our citizenship may be healthy, it can only meet its problems if it breeds great men who articulate the ideas which give expression to its imperatives and set goals for its activities.74 Eggleston's criticism of the absence of debate about politics and citizenship was certainly increasingly applicable to his own Party, until in 1974 it introduced a 'rights'-based platform in response to the ALP. In the 1950s and 1960s it moved increasingly away from the 'liberalsocialist' views of its predecessors which were consistent with an adequate theory of the citizen of a democratic nation-state. It regressed further and further under Menzies and Harold Holt into a combination of pragmatism and laissez-faire which targeted the passivity supposedly caused by social services. It no longer identified as central the need for such services to enable the individual to be a Kantian citizen able to stand up with others against the power of the state. The debate about rights died for ten years after 1956.
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Yet, when Australia entered the 1980s, despite the dearth of intelligent comment about citizenship up to 1972, it had a rich source for innovation if it cared to rethink the Whitlam years and its lessons. Central to these was the lesson that the existing legal system allowed the legal denial of even a popularly chosen government by an unelected official. Much more than the existing common law rules or legalist discourse would be needed if citizens here were to have even the inviolable right to an equal vote essential in each democracy. To attain that the Constitution would have to be changed and rights necessary to its exercise entrenched, perhaps in a bill of rights. A bill would recognise inalienable rights in all human beings, and thus deny a national jingoistic value system or standard as a point of reference for citizenship standards. Even the progressive sections of the ALP found it difficult to do this.
CHAPTER 4
From Subject to Citizen III: 1983-1996
I pledge my loyalty to Australia and its people, whose democratic beliefs I share, whose rights and liberties I respect, and whose laws I will uphold and obey. Oath of Australian Citizenship, 1994.
By 1983 the future agenda for citizenship in Australia should have been clear to both the Australian people and their political parties. A new social compact based on an active democratic citizenship was needed. A huge immigration - most of it to build Australia economically - had made Australia a multicultural society. Both sides of politics acknowledged this, although the conservatives were more begrudging than were the progressives about the implications of that reality. The very people who encompassed the downfall of the Whitlam government in 1975 had committed themselves to multiculturalism, and a number of inquiries and commissions, notably that chaired by Frank Galbally in 1978, had led to innovations and legislation which officially recognised that Australia was a multicultural society. This still remained limited to a readiness to foster 'cultural' diversity.1 The effect of being a society with over a hundred ethnic groups and eighty languages - a society of diversity and difference - was clear. The basically homogeneous social and cultural Australia of the first half of the twentieth century meant an Australia where there was often agreement about basic values held in common. The result had been a low level of conflict about what was the good and less need to manage difference - at least until the 1930s. Concretely, this meant that the issue of rights, as such, had not arisen as most people agreed on what was acceptable and much was decided in the private realm, without recourse to the state. After the arrival of non-English speaking migrants the issue did arise and it was shifted to the public realm as the new minorities asked to participate. 2 113
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The effect of these voices from 'outside' asserting their understanding of rights can be understood by one homely example. My father-in-law, an Anglo-Celt born in 1911, often laments the loss of the social trust which allowed him to discipline a neighbour's child for some incident without that being seen as an impermissible intrusion into someone else's private familial rights. The premise of a trusting Anglo-Celtic society of parents and children was challenged by a society of different ethnic parents and children from different classes, some of whom did not share his views of which values should be enforced and how. The diversity of values was compounded by the changing views of the family, ethics, morality and class, as well as politics, in 1950-80. For example, no longer was it impossible to see confrontational politics as unAustralian when so many groups practised them by the 1970s, despite a majority who still thought as my father-in-law did. 3 Thus in a report to the New South Wales Premier in 1978 — a sort of ALP counter to the Liberals' Galbally review of post-arrival programs and services to migrants (1978) which shifted policy emphasis away from assimilation - we read: The Commission in this Report has attempted to look beyond the concept of multiculturalism seen only as a need to preserve the cultural heritage of Australians with a non-English speaking background. It sees as a fundamental issue the right of minority groups to achieve total participation in the Australian and New South Wales political and social systems. Above all, the Commission has related this right to people. It has set out to show the very real contribution made by immigrants to the well-being of the whole Australian community ... For the first time a group of immigrants has been given the chance and the challenge of talking directly to Parliament through this Report ... The philosophy underpinning the Report and which provided the main yardstick to assess courses of action, is the one adopted by the Government, as expressed in the following terms by the Premier: 'it is a basic human right that no individual or group in the community should be discriminated against or excluded from the fullest participation in the social, economic and cultural life of the community and from the fullest share in all the opportunities the community offers'. The agenda was thus clear: citizenship in Australia meant attaining the highest standards of democracy and human rights known to all the different parts of Australian society, consistent with the dignity of each and every one of them, and therefore no longer guided by any one cultural tradition in such matters. The primary requisite was active participation by non-English speaking as well as English speaking inhabitants and subjects of the state's laws. A new definition of the political good for Australia was needed. In the 1970s a migrant voice asserted its understanding (a definition) of the good for the first time in an official capacity. Paolo Totaro
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exemplified the migrants who had risen to a decision-making level in the late 1960s, usually with the Labor governments. Another, George Venturini, Trade Practices Commissioner in the Whitlam government, later even suggested as the basis for Australian constitutional rights precisely those standards set by the Italian Constitution of 1946. These were the standards promoted by the liberal-socialist tradition discussed directly. Unfortunately, even his much less radical suggestion of the early 1970s, that Australia could learn from North American practice, ensured his exclusion from decision-making power.4 The increasing disagreement about what was right or a right in many realms of life, marked by increased litigation in many areas, and dispute over the application to different ethnic groups of different notions of 'reasonableness', became a feature of Australian life.5 In other words, participation shifted many areas of life from the private to the public realm. All this added up to a general community feeling through the 1980s that there should be much more consideration of what rights were; how they should be entrenched; and how they should be implemented and enforced. Entering into that debate was the multicultural society itself with its multitude of different expressions and standards behind it. We will discuss that below using the ethnic press. The internationalisation of the Australian labour market thus meant an internationalising of the discussion about such matters in Australia, typical in the Totaro report mentioned above. For example, the different demands of international and indigenous minorities like the Aborigines became one of the main areas where matters of rights were thrashed out using global points of reference and global standards. When the multicultural Australia expressed itself as that 'mythical' collectivity, the Australian 'people', it made clear as recently as 1993 that it believed that the protection of human rights in Australia was inadequate and it wanted a bill of rights introduced. If 'public opinion' was becoming more 'rights' conscious, it was also increasingly recognising that Australia was backward in its standards for a democratic citizenry and increasingly aware that the country's Constitution and its governmental structure would have to be changed to bring it up-to-date. But to do that there would have to be a successful referendum to change the rules and that was unlikely to succeed, given past failure at referenda. The 'passive' and politically uneducated population made by years of discouraging 'active' citizenship would therefore have to be educated about its role, practically and theoretically; and about why its active participation in political decisions was needed in many specific places and for particular changes. This education became a much discussed theme in the late 1980s.
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But, while all these realities were in need of attention, this was only half-recognised at the governmental level and only half-implemented as a consequence. The reasons for such inaction are myriad but the dominant one is that there were more pressing problems to be coped with. After the oil crisis of 1974, Australia went into economic recession, inflation spiralled and unemployment reached records only exceeded by those of the Great Depression. While the patterns were very similar to those of the European Community, the solutions of a small national economy, attempting to become competitive in a new international environment increasingly without tariff barriers, had to be different. The effect of the recession, which was at least partly the result of global economic developments,6 was a recognition that Australia needed to restructure itself economically. After 1983 the policy of the ALP (and the Opposition) was to end protectionism and encourage free trade. Many manufacturing industries in Australia became unviable. In the 1980s they reduced by 40 per cent. With resulting mass unemployment, immigration fell off from the Whitlam period onwards and was severely restricted by the state after 1983. In 1994 the first two problems were under control and unemployment shows the first real reduction to less than double digits.7 As Australian trade reoriented itself increasingly to the Asian region (without the European Community ever losing its pride of place), sacrificing the British market that had been hitherto guaranteed but was no longer open after Britain joined the European Community, a major problem arose for the consideration of rights by the Australian state. Australia increasingly sacrificed its concern about Asia's refusal to observe human rights to concern about securing trade deals even with states which had notoriously bad records in human rights. Its potential as a leader on such matters in the region was lost as discredit fell on Australia for its policies towards East Timor, Singapore, China, Burma and other states with which it wished to trade. A series of international visitors and commissions after 1985 found breaches of human rights in Australia with regard to Aborigines, refugees and police powers. It refused to accept the policy of tied aid adopted by the European Community and, verbally at least, by the Clinton administration in the United States. Its credibility with opposition groups in the region was increasingly strained, particularly where East Timor, Bougainville and Fiji were concerned.8 The 'economistic' approach to problems of the ALP thus led to attitudes in Australia which slowed.down the attempts to meet 'best international practice' as embodied even in the limited number of international conventions Australia had signed. Often there was a readiness to play on the ever-latent racism where immigrants from Asia were
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concerned. For authors like Geoffrey Blainey, this led to a renewed call for resuscitation of the Anglo-Celtic nation, which influential conservative forces endorsed.9 So, while there were many intimations of the need to redefine the Australian nation as something which was jointly constructed by different groups and never closed, these were accompanied in the 1980s by renewed reference to a unilateral definition of what it was to be Australian. This was perceived as racist by many ethnic minorities. In such a climate, attempts to reform institutions became half-hearted and governed by political considerations. In fact, the gap between popular perceptions of what the Australian polity needed and the elite's (especially parliamentarians') perceptions of what was needed, continued unresolved for the decade beginning 1983. In a sophisticated survey conducted in the early 1990s, the following facts emerged: that more than half the group surveyed felt Australia did not have sufficient protection of rights and only 10 per cent trusted the government; that 58 per cent thought that that protection should be constitutionally entrenched and 61 per cent were ready to leave it to the courts to administer any bill of rights. On the other hand, 80 per cent of parliamentarians thought that Australia had no problem with rights; that parliament was trustworthy and should have the 'final say' over any bill of rights.10 Even in the civics education courses which were reintroduced late in the 1980s contradictions abounded. Although it was patently clear that in a multicultural society the notion of 'belonging' could no longer be understood as a submission of newcomers to an essential national ego-identity, the belief in such a view was never discarded. One set of commentators wrote apropos the jingoistic Bicentenary of Australian settlement that such contradictions had reduced the multicultural nation to a trivial pursuit game and led to censorship of contributions by progressives like Michael Kirby and Franca Arena because they described the continuing racism and denial of human rights to minorities in the 1980s. Clearly, all nations had symbols like flags and Olympic teams, but in a multicultural world where each group had its own symbols, a single national identity could only provoke conflict. Pre-industrial states, including the greatest empires, were held together not by national feeling but by a system of power, symbolised by the divinely appointed monarch. For a colonial subject, loyalty to the British Crown had nothing to do with ethnicity. The modern nationstate, in its ideal form as a democratic republic, cannot exist on this basis. Since power belongs to the people, it is only delegated to the state, legitimacy cannot rest on loyalty to the state. The state is an instrument of the people, and that makes it imperative to know clearly who constitutes the people:
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Nationalism is primarily a political principle, which holds that the political and national unit should be congruent. The struggles to make the state and the nation congruent have been at the root of much of the slaughter of our century. In fact, there are very few countries today which are ethnically homogeneous. The process of industrialisation and modernisation leads to larger state units, embracing a variety of ethnic groups. In encouraging labour migration, the states concerned followed short-term labour market interests, with little consideration of the long-term consequences. There was certainly no desire to create multi-ethnic societies. Now that this has happened, there are various responses: laissez-faire, state racism or exclusionism, assimilationism, and multiculturalism. Whatever policy is followed, a new situation has to be dealt with: membership of a collectivity is no longer simply a result of birth; the boundary of a collectivity cannot easily be defined according to the myth of a common origin or fate. If nationalism is a crucial social ideology then a new way must be found to define the nation. Nowhere is this problem more pressing than in Australia, where postwar migrations have been so large in scale that they have transformed the ethnic composition of the population.11
The writers (Castles, Kalantzis, Cope and Morrissey) highlighted what the ALP government had to do. But they also typified the prevailing definition of the nation as opting for inequality plus fragmentation and quiescence, since the real decisions were taken by the stock exchanges of Tokyo, London and New York anyway. We discuss this below and in the Conclusion to this book. Formal Requirements: 1983-1994 By 1983 Australian nationality was very easy to obtain. All it required of an alien was two years of residence and a basic knowledge of English. Practically nowhere else could nationality be obtained so easily. The abolition in 1986 of the existing oath of allegiance ended a major problem for non-British immigrants. The amendments of 1983 had been the result of nationwide consultations convened by Professor Jerzy Zubrzycki in 1980-83. Professor Zubrzycki, an Australian Pole, had been appointed by the LiberalNational government. This showed the bipartisan support for more openness which mirrored realities since there had been a dramatic increase in applications for naturalisation in 1980-83 as the Immigration Department streamlined its procedures.12 In the debate on the amendments, Stewart West, the Minister for Immigration of the incoming ALP government, indicated that the abolition of 'alien' and the relaxation of markers of 'belonging' (knowledge of English and long periods of residence) recognised the increasing 'difficulty which the current requirement can cause to people in a world which is increasingly internationally mobile'.13
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The relaxed formal requirements, though sometimes arousing the ire of conservative organisations like the Returned Servicemen's League, usually had Opposition support, although they meant that the only evidence required of Australian citizenship was a certificate or an extract from a register of descent. In 1983 a new oath was proposed: 'I renounce any current citizenship and allegiance to any other state than Australia. I swear [pledge] by Almighty God that I will faithfully uphold the Constitution, obey the laws of Australia and fulfil my duties as an Australian citizen'. The oath again became the subject of discussion in 1992 and led to an amendment to the preamble to the Citizenship Act in 1994. The innovation was: Recognising that Australian citizenship represents formal membership of the community of the Commonwealth of Australia; and Australian citizenship is a common bond involving reciprocal rights and obligations which unite all Australians, while respecting their diversity, and persons granted Australian citizenship enjoy these rights and accept these obligations by pledging their loyalty to Australia and its people, including pledging to share their democratic beliefs; and to respect their rights and liberties; and to uphold and obey the laws of Australia.14
A new oath had also been introduced from which association with a pre-existing identity was almost completely absent: 'From this time forward (under God — optional) I pledge my loyalty to Australia and its people, whose democratic beliefs I share, whose rights and liberties I respect, and whose laws I will uphold and obey'.15 This completed a long evolution from a formal official recognition of multiculturalism to an almost nationality-neutral Act. The documents on Australian citizenship issued as a consequence even ended the requirement for 'basic' English for certain categories of people who applied, including those over fifty years of age. Those still obliged to learn English were informed that: you must be able to speak and understand basic English for citizenship, but you do not need to be able to read and write English ... When a husband and wife apply for citizenship together, only one needs to have a basic knowledge of English ... If you need help in learning English, you can attend English classes held in Australian cities and larger country towns.16
On being granted citizenship that person obtained all political and civil rights, including the vote, and the obligation to jury service and to 'defend Australia should the need arise'. Britons still retained British citizenship on naturalising. So in the 1980s and early 1990s the possibility of acquiring Australian citizenship not only became more and more easy, but the traditional
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marker of 'belonging', knowledge of the official national language, had been so diluted that it could no longer be regarded as such. Language had been reduced from an affective to an instrumental status. This is clear from the requirement that only one spouse need know English when both applied. It was possible to become an Australian citizen without knowing the majority language. There were radically innovative implications to this which were highlighted by the debate in Federal Parliament in 1982.
Official Discourse about Citizenship
The debate made clear the central function of language in the theory of 'belonging' that was traditional in nation-state citizenship. The discard of the language requirement therefore had a double significance. The Liberal Minister, Ian Macphee, stated in that debate: The most important feature of citizenship is that it makes an individual an institutional member of the nation. This brings certain rights and responsibilities to participate in the nation's affairs, including government, through the right to vote and the right to stand for election. Citizenship also means that the state will afford the citizen the maximum possible protection when outside the country of citizenship. Citizenship also carries a clear sense of belonging to, and identification with, the nation, its people, its values and its institutions. This is very much a personal thing. Naturally, the intensity of identification or commitment varies from individual to individual. To some people citizenship means little more than the convenience of an Australian passport and the right to return without formality after an overseas visit. For many new settlers it is a solemn undertaking involving a major change in their obligations and sense of identity ... Acquiring Australian citizenship should not require suppression of one's cultural heritage or identity. Rather, the act of becoming a citizen is - symbolically and actually - a process of bringing one's own gift of language, culture and traditions to enrich the already diverse fabric of Australian society. Our vision of our multicultural society shares, with our concept of citizenship, a strong emphasis on building a cohesive and harmonious society which is all the more tolerant and outward looking because of the diversity of its origins.17
While in the context this was an open recognition of what had been developing since the Whitlam period - the notion that being a citizen did not mean denying one's cultural heritage or identity - Macphee incorrectly typified Australian citizenship rules as a combination of the ius soli and the ius sanguinis. This may explain why he understood the role of language as a marker of the belonging he had said was essential to citizenship. Macphee admitted that the then existing requirement of 'adequate'
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English was 'controversial' but he stated that the government believed it was needed for the fulfilment of the rights and duties of jury service, standing for electoral office and exercising the vote. English is Australia's national language and therefore the essential language of communication in our multicultural society. It is the language of our parliament and judicial institutions. To eliminate the English language as a requirement would result in significant numbers of non-English speaking [citizens] who would not be able to understand the proceedings of parliament or consider the diverse arguments which often occur regarding national and political issues presented in the English language media. Were this otherwise it could foster the growth of a second-class citizenship whose members remained isolated from the general Australian community. If it is accepted that the English language must be maintained as a requirement for citizenship, the issue then becomes the level of proficiency required.
Macphee then continued, making clear how this view was ultimately bound up with 'belonging'. 'The residence requirement for citizenship reflects the view that the applicant should have spent sufficient time in Australia to develop an understanding of its institutions, parliamentary and legal systems, language, culture and traditions so that he or she can demonstrate a commitment to, and an association with, the nation.' 18 Among those who replied to the Minister was Dr Andrew Theophanous, the ALP member for Burke. Theophanous was of Greek-Cypriot origin, and among the first generation of 'ethnic' members of parliament fostered by the Whitlam reorientation of the ALP. In Whitlam's cabinet there had been no one of similar origins. Theophanous fastened on Macphee's claim that acquiring citizenship is a 'solemn undertaking involving a major change in their obligations and sense of identity'. While he agreed with this, he was more concerned with the controversial requirement for an adequate knowledge of English, noting that it had been used to exclude from citizenship 'persons whose political views were not acceptable to the Government' and that this was a major reason for migrant hostility to it. He also noted the insufficient number of English teachers - two thousand in all. Such a number could only teach all eligible migrants in twenty years. So the policy of the ALP was to abolish the language requirement. However, what he particularly disagreed with was the belief that the lack of a knowledge of English prevented immigrants from understanding and participating in the public realm: The comment is, in my view, based on ignorance. The Minister is aware of the existence of the ethnic media. Newspapers such as Neos Kosmos, El [sic] Globo, the Hellenic Herald, La Fiamma and many others have comprehensive coverage of the news and political affairs. There is also the important role of
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the ethnic radio in this matter. I challenge the Minister to produce evidence that after three years of arrival migrants with little English have less knowledge of political processes than those for example from the United Kingdom. Surely interest is relevant here. Most non-English migrants come from countries where political knowledge and involvement is much higher than in Australia itself. This is born [sic] out by the increasing role of the ethnic communities in the Australian political processes. All this is not to deny that English is Australia's national language. It is simply to deny that achieving quick knowledge of it is either a necessary or a sufficient condition for an understanding of the obligations of citizenship.19
Theophanous' speech highlights the effective end of the notion that the learning of English implied a transfer of affect to a notion where it was instrumental. In multicultural societies, no longer is knowledge of the national language regarded as essential for civic participation. In fact, this could only have been recognised when multiculturalism replaced assimilation as state policy. J. J. Smolicz writes of assimilation: 'the waves of European immigrants from non-English speaking backgrounds were met with the expectation that before long they would achieve almost complete assimilation. The assumption was not only that they would acquire Anglo-Australian ways of life and the English language, but also that they would abandon their own languages and cultures'. With such policies no government publication was obliged to appear in an 'ethnic minority' language. Under multiculturalism, government policy on language changed. Ethnic radio appeared (2EA in 1975), and then SBS television (1978), and government publications started to appear in the languages of the target communities. A National Language Policy Advisory Committee was established in 1984. Among its first recommendations was the provision of services in languages other than English and the acquisition of a second language as a priority. This became a feature of the decade 1985-95. Some left-wing Englishlanguage newspapers started to carry columns in languages other then English. Pamphlets about citizen rights were published regularly in other languages in the 1990s.20 In one of these we read that: In Australia, a pressing demand for immigrants is participation at all levels of the social, political and cultural life of this great country. Participation also means knowledge and access to the instruments of information. Those who do not know English, or who speak (masticano) it badly, are handicapped. In no field can such a handicap have so destructive a consequence as in the field of law ... For the Italians of Australia, access to understanding of the principles underlying local law - often so very different from that of Italy - is the prerequisite for the protection of law itself. Australian law is all written in English, often in a technical and most difficult English. For Italian speakers it presents an almost unsurmountable obstacle. That is the reason for this publication in Italian: it offers answers in as plain and least technical a language possible to
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that part of the Australian law which applies in Victoria and is most commonly consulted by the citizen.21
In these years there ended the refusal of the Australian courts to allow languages other than English to be used in their proceedings. Translation and interpretation services grew immensely. In sum, it was shown practically that knowledge of English was not essential for civic participation. The position advanced by Theophanous in 1982 is enormously significant. In chapter 1 the point was made that very frequently the way a national identity had been built was by destruction of minority languages and cultures, and by the obligatory acquisition of the official state language as a way to build an affective relation with the nation-state. By the 1980s the requirement for that process was being challenged in Australia. Already it was clear to many Australians that it was practically possible for different ethnic groups to access the civic and public realm of the citizen using many different languages - as the Italian language publication cited above asserts. Where citizen acts were concerned all languages could be seen as instrumental. From the moment political discourse could be, and was in Australia, translated into another idiom, the very notion that citizenship concerned the way 'our' institutions were accessed by 'them' (advanced by Macphee) was undermined. Certainly, there were still problems on a personal level in hospitals, courts and so on.22 But one simple example shows how much legal discourse altered. In the 1960s a Greek woman who sought damages for loss of friendship because another Greek had said she was a 'witch' was told by the judge that, being an enlightened community, Australians did not believe in witches, and no damages were possible. In 1984 in Moffa it was stated that provocation rules for murder should take into account diverse cultural reactions. Even more recently, proposals for law reform to relax universal rules for all civil areas have been frequent.23 Once the public acts of citizenship could be expressed in different languages which bore much more active citizen traditions than did the British tradition, the latter became subject to radical reinterpretation. The wide network of interpreting services introduced in most public institutions after 1985 marked a new relationship between the public and the diverse private ethnic realms. The general effect- if unhindered - should have been a proliferation of rights as they were extended to include what the newcomers brought with them. This was, however, not so in 1985-95. The first place where such expectations were disappointed was in the attempt to introduce a bill of rights in Australia. This would have added to the British common law tradition what a great number of newcomers
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had had in the Constitutions of their states of origin: a formal list of citizen rights. A Bill of Rights for Australia: 1973-1993
The proposal for a bill of rights had first seriously been advanced in 1973 by Lionel Murphy, who was mindful of the failure of the common law to protect even the civil and political acts of citizenship in Australia.24 The bill was blocked by the conservative Senate. The bill would have set up a system of applications to a Human Rights Commission which, after a failed attempt at conciliation, would have allowed civil actions to be brought by the applicants. Within the ALP of the time there was patent awareness of the need for such a bill and acceptance that its contents would have to meet the best international standards rather than local national norms. The young Gareth Evans, later briefly Attorney-General in the Hawke government, wrote a careful and sensitive defence of such a measure in 1973. The starting point of his analysis was the long list of international conventions concerning rights, starting with the United Nations Universal Declaration of Human Rights, which Australia had signed. Among those directly relevant to citizenship were: The Hague Convention on the Conflict of Nationality Laws, 1930; the Universal Declaration of Human Rights, 1948; the Convention on the Reduction of Statelessness, 1961; the International Convention on Civil and Political Rights, 1966; the International Convention on Economic, Social and Cultural Rights, 1966; and the International Convention on the Elimination of all Forms of Racial Discrimination, 1965. Despite the claim of the Joint Committee on Constitutional Review that all the rights therein were guaranteed because in Australia there was parliamentary responsibility to the electors, Evans recognised that neither the Constitution nor the case law protected the lists of rights embodied in such instruments. Although the equal vote was the basis of all the other rights and required the negative liberties to make it work, it was not a right in Australia. Judicial interpretation of the rights in the Constitution (discussed in chapter 2) had trivialised the right to freedom of religion. Even the right to strike was tottering. So, Evans argued, it was clear that these rights should be embodied in a document. Less clear was how to 'express ... them in workable legal language'. Where two rights were in conflict, which should have primacy and by what criteria? He came down in favour of limiting any list of restrictions on rights, and that such restrictions should always be 'reasonable'. Since any bill would only be functional if action under it lay against all levels of state, decisions would have to be by judicial review. That raised the central question of whether the High Court should be
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the last place of review. Here Evans faced what was commonsense by that time in the ALP, that the High Court's 'legalism' was a problem which could not be overcome even by allowing legislation which excluded reference to the bill. This had been done in Canada. He preferred a solution which was commonly adopted in Europe at that time. Quoting the constitutional lawyer, Tony Blackshield, he wrote: In a nutshell, judicial protection of liberty depends on three conditions. There must be a formal legal basis on which the judges can act legally; they must have at their fingertips legal techniques enabling them to act effectively; and they must have enlightened human values enabling them to act wisely. Opponents of an Australian Bill of Rights seem to say that if the last two conditions are lacking, we should not provide the first. I contend that if we supply the first, the second will follow. As to the third there may sometimes be room for uncertainty; but so there is wherever we depend on institutions manned by human beings. The final issue was whether a bill should be entrenched. Mindful of the conservatism of the Australian judiciary, Evans favoured a partial entrenchment, where an amendment to the Constitution required a twothirds majority of parliament. 25 To some extent, Evans' dilemma with this problem came from his refusal to accept the Nigerian solution, where the conflict between judiciary and democracy was avoided by making the judicial solution of conflicts subject to what was 'reasonably justifiable in a democratic society'. Evans could accept the lawyerly 'reasonable' but not the enigmatic 'democratic'. Elsewhere, and notably in the European Court of Human Rights - the most important and advanced Human Rights Court - the trend was to make all judicial judgment about conflicting rights (state/ individual) reconcilable by what was 'necessary in a democratic society'. In fact, Murphy's abortive bill of 1973 did contain such words and this was one reason given for its rejection in parliament. In 1985 when Lionel Bowen, Attorney-General in the Hawke government, attempted to reintroduce a much weaker bill, the words had been watered down to 'such limitations as are demonstrably justified in a free and democratic society'. This bill, too, created such controversy that it was not even put to the vote. In the States proposals for similar legislation also always came to naught for the same reasons. 26 The refusal by even the most radical Labor leaders to grasp the nettle that 'democratic' standards had to be the measure of all others and should decide where lines between public and private were drawn, posed continuing problems. 'Reasonableness' is a culturally relative notion, and therefore very difficult to translate. 27 'Democracy' is, once seen procedurally, a neutral and universal notion, whatever the values or motives
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each voter has in his or her heart in the polling booth. As it is invariable, it is possible to arrive at some precision about democracy and consistency about its meaning as a standard. This does not mean that the procedural notion of democracy - one person, one vote, one value leading to power from below - contains no value. 28 As we pointed out in chapter 1, its very reality preserves the dignity of all individuals and their capacity to decide the good. This view is inscribed in all the Conventions to which Evans referred. It is possible to give judges the final say about rights in conflict and to direct them to take into account what is 'necessary in a democratic society', that is, political and ethical matters. Indeed, to do this is to help judges who have not had that concept inculcated in them in their training. 29 It is only because they believe that democracy itself involves expertise (which by definition it does not) that Australian judges disqualify themselves from pronouncing on it. Procedurally it is culturally neutral as well. It is thus an error to arrogate to the law and its reason culturally embodied wisdom about human rights in the following fashion: 'imperfect rationalism and empiricism are poor substitutes for the accumulated experience of the community, enshrined in the common law. The common law experience reflects the wisdom and even the follies of our civilisation. However, it represents an evolved public morality which is the only sound basis for the formulation of legal precepts'. 30 Are we justified, when we think of the changing migrant community of Australia, in borrowing the title of the leading work in this area: 'whose rights, whose rationality?' 31 It was with the understanding that there was nothing undemocratic about a judicial review of a bill of rights, that in 1986-88 a Commission on the Reform of the Constitution again considered the issue. Again it made the point that the common law had not provided sufficient protection for rights in Australia. It again repeated many of the points made fifteen years earlier by Evans and repeated many times by leaders from all political persuasions thereafter. 32 During the inquiry one report to the Commission stated: 'though many Australians would appear to believe that the common law protects their fundamental rights, in fact such fundamental rights as the. right to vote, freedom of speech, the right to practise one's religion freely and the right to seek employment without discrimination are not recognised at common law ... Numerous examples of the common law's failure to develop common law rights were brought to the Committee's attention'. The Commission went on to compare British common law standards with those of the European Court of Human Rights, noting that 'the English common law does not measure up to [those] standards'. Even vaunted rights like habeas corpus were found wanting. Not surprisingly, the final report of the
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Commission recommended that a long list of human rights be inserted into the Constitution. Despite such recognition of the need for a bill of rights, when the proposal for such innovations was put to referendum in 1988, only 30.79 per cent of the voters supported the proposed constitutional changes. While this marked the end of the 'dark phase' from 1973-88 when eleven out of thirteen proposed alterations to the Constitution had been defeated in five of six States, it was, nevertheless, a devastating defeat. Those who wished to bring Australian rights into line with international standards using political methods had to rethink the matter. They noted that with the 1988 proposals there were difficulties getting a clear and simple public understanding of the issues written into the voting papers. The Opposition successfully argued in court that it was biased to ask simple questions about whether Australians wished to have a democratic system.33 The High Court judgments indicated that it still took the hands-off attitude with regard to parliament which it had taken in the past. The approach was mirrored in the State Supreme Courts. There the clearest expression of the position of the Bench came in the judgment ofJustice Kirby in the Builders* Labourers case of 1986. The relevant facts of that case were these: the State parliament passed a law which guaranteed the conviction of the Builders' Labourers Federation after it became clear that the Federation would not be convicted under the existing legislation. Parliament thus blatantly interfered with the right to fair trial before the courts. The headnote makes clear what was at stake, even in legal eyes: Held ... that neither by an application of the separation of the powers doctrine nor by recourse to alleged breach of fundamental rights can the Courts declare invalid a law passed by the NSW legislature so that the Builders' Labourers Federation (Special Provisions) Act 1986 was a valid law even
though it was, in directing the outcome of pending litigation, an exercise of judicial
power [emphasis added].
Justice Kirby, who was a leading protagonist of human rights for Australia, remarked: In the end, it is respect for long-standing political realities and loyalty to the desirable notion of elected democracy that inhibits any lingering judicial temptation, even in a hard case, to deny loyal respect to the commands of parliament by reference to suggested fundamental rights that run 'so deep' that parliament cannot disturb them ... this conclusion does not leave our citizens unprotected from an oppressive majority in parliament. The chief protection lies in the democratic nature of our parliamentary institutions.34 So, even in 1986 the fissure in the legal profession generally, as well as the judiciary, which had started with the appointment of Lionel Murphy
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to the High Court in 1975, was clearly not well developed. That very conservative profession had reproduced its view through successive Chief Justices, Sir Garfield Barwick (1964) and Sir Harry Gibbs (1981), who were bitterly opposed to a bill of rights. Both were committed to the notion that the common law was sufficient protection in a society where gross abuses of human rights were not envisaged. 35 Although Barwick had provided the Governor-General with the advice which led to the dismissal of the Whitlam government in 1975, they held the sanguine view that democracy provided sufficient protection for Australians and that this was a fair and tolerant society. This was implicitly endorsed even by the radical Kirby in the Builders' Labourers case. He suggested, relying on a British judgment, that if a law declaring that all blue-eyed babies should be killed at birth were passed, it would be opposed by the courts, but that that could scarcely happen here. It clearly had elsewhere. Aborigines, whose part-white children were compulsorily removed from their mothers and sent to semi-orphanages with very high death rates (see chapter 6), might have quibbled at Justice Kirby's view. Such views of democratic primacy became increasingly unsustainable in the late 1980s as it was clear that the democratic option was not easy in the Australian system. Australian citizens knew little about their constitutional system and were too passive to intervene to change it (see below). Then increasingly, the judiciary came under criticism for its hands-off attitude even within the legal profession itself. Both the new Chief Justice, Sir Anthony Mason, and his eventual successor, Sir Frank Brennan, adopted a much more activist stance. Sir Frank foreshadowed the development of 'judicial qualities of a different kind ... some would say of a more sophisticated kind - than the qualities which we have looked for in this country as appropriate for our judges'. 36 So in the late 1980s it was, by a bizarre quirk, the High Court itself which tried to fill the gap left by the absence of a bill of rights in Australia. It could only do so in a very lopsided fashion, both for subjective and objective reasons. Australia has thus continued to fall behind international best practice in the human rights area despite valiant efforts by the High Court to bring it up to date, at first with, and then increasingly against, the will of the state and the ALP government. The initial vehicle for judicial activism was s. 51 (xxix) of the Constitution which empowered the Commonwealth to make laws for external affairs. The Federal ALP government was quite happy about such centralisation while that was the ancillary result. Australia had subscribed to many of the Conventions of the United Nations and the International Labour Organisation. In a Westminster system - which Australia's system supposedly was - domestic legislation had to be passed before the content of such Conventions became law in
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Australia. In 1974 the then Senator Lionel Murphy brought down the Racial Discrimination Act implementing the provisions of the UN Convention for the Elimination of all Forms of Racial Discrimination (1965). It then remained to be seen whether the effect was to give the Commonwealth jurisdiction over such matters where they involved what was apparently directly placed under state power in the listed division of power under s. 51. In 1982 in Koowarta v. Bjelke-Petersen an action was brought for discrimination where the state government had taken action to exclude Aborigines from rights in land. Land was traditionally a matter for State jurisdiction. At issue was the power of the Commonwealth to legislate on such matters using s. 51 (xxix). The court decided that it was a valid use of the power. In the Tasmanian Dams case a year later, the view that the power could be used to cover environmental matters was accepted as well. The effect of these decisions was to introduce into Australia international standards for 'rights'. The 'activist' High Court thus started to override the conservative electors and the elected governments, bringing Australia increasingly into line with standards expected elsewhere. But it was a slow process as it had to be decided on a case-by-case basis. In areas of public rights the legal rules of standing37 prevented many individuals and organisations bringing actions, as they had insufficient 'interest' in the issue in dispute to be heard by the court. 38 The court, however, started to go further than the Federal government wished in the early 1990s. Building on the earlier decisions, the court started to make an 'activist' reading of the Constitution for 'implied' powers, which had not been seen when the earlier 'legalistic' interpretation had dominated. When it did this practically all the views expressed by Justice Murphy in the later 1970s and early 1980s were confirmed, whereas at the time they had been decried. The most notable of the cases relied ever more greatly on the jurisprudence of North American, European and World Court provenance, where hitherto it had been eschewed. Reliance on such 'authorities' enabled the court to break with provincial national standards which conflicted with human rights. For example, in the landmark case of Dietrich the High Court displaced the Mdnnis case which had denied Australians the right to free legal representation in criminal trials. In a system based on the 'rule of law', to deny such representation jeopardised the accused.39 Again, in the Free Speech case of 1992 the High Court found an 'implied' right to free speech in political matters in the Constitution. Perhaps the most farreaching of the judgments was that of Justice Gaudron (the first woman judge on the High Court). She made clear the sources of inspiration in overseas decisions, notably those of the Sunday Times (1970 2 EHRR245)
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and the Observer (14 EHRR 153) as well as common law decisions. While it is clear that finding ss. 7 and 24 of the Constitution raised an implied right of free speech, resting on the unresolved premise that the sections guaranteed democratic representation - which the court itself had stated did not guarantee one vote, one value - the decision was, nevertheless, a landmark in understanding democracy in Australia (see also chapter 7). In turn, it made possible further decisions which extended the democratic public realm and challenged the immunity of parliament from accountability to citizens. The first case involved an action for defamation brought by Andrew Theophanous, MP, who had been instrumental in opening up the citizen admission rules in 1982-83. The action lay against the president of the Victorian branch of the Returned Servicemen's League who had published a newspaper article alleging that Theophanous was biased towards Greeks and wanted English to no longer be the national language. Relying on the Free Speech cases the High Court held that: There is implicit in the Commonwealth Constitution a freedom to publish material discussing government and political matters and concerning Members of Parliament of the Commonwealth, relating to the performance of their parliamentary duties or to their suitability for Parliamentary office. Accordingly, such publication will not be actionable under defamation law if the defendant establishes not having been aware of the falsity of the material published and that publication was not reckless (in the sense of not caring whether the material was true or false) but was reasonable in the circumstances.
The position was light years from the jailings without trial of journalists in the 1950s. Chief Justice Mason, Justices Toohey and Gaudron went further to hold that: 'It is incontrovertible that an implication of freedom of communication, the purpose of which is to ensure the efficacy of representative democracy, must extend itself to protect political discussion from exposure to onerous criminal and civil liability if the implication is to be effective'.40 Again, in reaching their decision they referred to UK decisions applying the standards of the European Convention on Human Rights (at 721). Thus, the earlier limitation of the application of free speech to political matters was widened to restrict criminal and civil action where they threatened to close down debate. Justice Brennan (appointed Chief Justice in 1995) certainly took a more cautious view that the earlier cases did not establish a 'personal freedom' (at 731). He believed that a law which restricted free speech was still valid 'provided the restrictions imposed by the law are proportionate to the interests
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which the law is calculated to serve' (at 733). He found United States and European standards of 'extremely limited' use, precisely because they were based on express rights in a bill and did not have to be implied. This placed the final say in the reasoning of the High Court as it traditionally had, rather than according to the standards suggested in the 1973 discussion of a bill of rights. His view highlighted that even an activist court and law could go only so far.41 His express commitment to defending human rights through judicial review, cited above, ran into both political and structural problems inherent in the judiciary deciding to go it alone. When in the recent case of Teoh (1995) the court instructed bureaucrats that they must take into account the standards of rights set in international law in reaching decisions even where such rights were not part of domestic legislation, it clashed with government policy. The ALP government had been quite happy with the extension of the external affairs power, but where control of Asian immigrants was concerned it had hidden behind the domestic legislation rule, to avoid the need to meet international standards. The Teoh decision met determined government opposition and criticism.42 Just as the multiculturalism and nationality debate had become trivialised in the decade after 1983, so ALP commitment to judicial activism lasted only while it corresponded with government policy. Indeed, when, for example, government legislation against strikes under the Trade Practices Act ss.45D and E was condemned by the International Labour Organisation as a breach of human rights, the Minister tried in 1991 to hide the condemnation from the public and suggested that the condemnation was misplaced. 43 By the 1990s criticism of the judiciary by outsiders, notably political scientists, for not taking an activist stance had been replaced by an internal self-criticism by the legal profession and judiciary itself.44 Many made statements outside the court about the need for Australia to adopt more up-to-date minimum standards in human rights. 45 It was, in part, because the judges realised that they could only go so far through activism that some of them, notably the then Chief Justice, Sir Anthony Mason, openly proclaimed themselves in favour of a bill of rights (1988). Indeed, the court has often taken away with one hand what it has given with the other. It has certainly strengthened the civil and political rights of Australian citizens in recent years. But it has also deprived them of many of the social and economic rights which they had in the same period. Many of these were enshrined in the Conventions which Australia had signed. Notable among these was the right to strike (and to be immune from action for economic loss due to the strike). The most radical of these decisions concerned the air pilots, when, in an almost orchestrated attempt to force the pilots into the new industrial policies
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of the Accord (where the trade unions offered wage restraint in return for reciprocal commitments to wage indexation and employment-creating practices), the ALP government smashed their union when the court found the leaders liable for damages. The Victorian Supreme Court stated {per Justice Brooking) that while 'the strike has long been regarded as part of the Australian way of life' it did not exist as a right which protected a union leader from legal action for damages. 46 The judges had, despite their own self-deprecation, been remarkably successful in compelling the state to be more open and transparent in its activities in decisions on the Freedom of Information Act (1982), the Administrative Appeals Tribunal Act (1975), and the Commonwealth Ombudsman, all blocked when first canvassed under Whitlam. 47 The principle that the state had to observe the rules of natural justice in dealing with its citizens was gradually established despite occasional bizarre decisions like that of Salemi which continued earlier Communist-bashing. 48 This is discussed in chapter 5. We can sum up the experience of judicial activism this way. Greater openness to systems other than those of the common law had certainly advanced citizen rights in the 1990s. That very progress had revealed the limitations of judicial activism and brought ever stronger demand for a bill of rights. 49 Yet it was also clear after the defeat of the 1988 referendum that such a bill would not result from a simple appeal to the Australian population. Given the absence of bipartisan support and the complications of the rules governing constitutional change, some other way forward would have to be envisaged. 50 Increasingly, attention was focused on political education for the electorate. It must be remembered that the ALP had been rudely shocked about its assumption that the Australian people was the most democratic in the world by the dismissal of the Whitlam government and the popular choice to return those who had encompassed its dismissal. When the bitterness had settled - by about 1980 - much closer attention began to be paid to the real nature of the Australian electorate. A renewed emphasis on its passivity started as Labor myths were overturned in academe and politics. Certainly, there had already been a strong fall-off in electoral participation even before 1927, which was why compulsory voting was introduced. This is discussed below. The assumption had been Brycian, that if they were compelled to vote they would become good, active citizens. Yet this was patently not achieved and so multiple inquiries and commissions were set up after 1983 to ensure that there could be no repetition of 1975. That year posed both a problem of constitutional structures, which allowed the legally elected government to be dismissed by an unelected Governor-General, and the readiness of the population to endorse what outside observers typified as a peaceful coup d'etat. On a
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first level this could be construed as ignorance of representative government and its rules in the electorate. On a second it could be construed as alienation from a system which the electorate understood practically all too well. The first was certainly true. A survey of 1987 revealed that 53.9 per cent did not know that Australia had a written Constitution and that in the 18 to 24-year-old group - the most formally educated - the figures rose to 70 per cent.51 The Constitutional Commission of 1988 noted that: We are most concerned at the widespread ignorance of the Constitution and of the major impact which it has on life in Australia. The process of constitutional reform is ultimately determined by the electors of Australia. They will decide whether any change is to be made to the Constitution. We believe that there is a real need to educate people in at least its basic schemes and provisions. Education in these matters will assist greatly in improving the general appreciation of how our system of democratic government operates ... As a first step we suggest that the education authorities in each State and Territory give consideration to including appropriate material on constitutional provisions and parliamentary institutions and practices in school curriculum ... In order to meet these objectives we arranged for the printing of 145,000 copies of the Constitution for free distribution to people who requested them.52 These figures already augured ill for the Commission's proposals about constitutional reform. Its proposals for an equal vote; elected local government; new States; and a strong list of human rights in the Constitution, were all directed at creating an active citizenry, although its specific recommendations under that head were for a power to make laws concerning citizenship and clearer and stronger law about deportation.53 As we have seen, the referendum was defeated disastrously, redoubling awareness that a major problem for the future was the completely 'passive' nature of the Australian citizen; or that the party system overrode that of the 'people' when it came to making decisions about the social compact and whether it was appropriate to contemporary problems. In 1989 the various inquiries started to focus attention directly on the citizen who had proved such a lame duck even when the ALP wished to change the constitutional system to achieve the following apparently democratic and popular goals: to reflect adequately Australia's status as an independent nation and a federal parliamentary democracy; to provide a suitable framework for its economic, social and political development; to recognise the different levels of federal and local government and to guarantee democratic rights.
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The ALP's understanding of the constitutional impediments to its program had rested on the notion that there was insufficient institutional expression for democracy in Australia. From Whitlam onwards its leaders and followers tended to believe that if that issue could be resolved and popular sovereignty asserted, all other problems about inadequate citizen rights in Australia would also be resolved. Its myth was thus of the 'mystified' people - though this had often been coupled with a very hierarchical labour aristocracy within the labour movement and the ALP since its formation. It had inferred from 1975 that the people would not vote for change when economic conditions were bad or the ALP weak. But in 1988 it had had five successful years in power; a relative return to industrial stability and cautiousfiscalpolicies which were bearing fruit. It therefore expected the population to support at least some of the proposals for constitutional reform. In fact, 70 per cent of the electorate voted against attempts to modernise the system and make Australia conform to best international practice in citizenship. Appalled, its progressives sought to create an 'active' Australian citizen for the first time in Australian history. A Senate Standing Committee on Employment, Education and Training, picked up on the Commission's proposals and considered 'education for active citizenship in Australian schools and youth organisations'. It added to the surveys of 1987 those of 1983 which showed: 'that a single and most important reason why young people fail to register for the vote is that "they do not see any direct link between the government or Government institutions and their own lives" ... apathy also leads to a failure to acquire any real political knowledge. The majority of this age group, the study comments, reach 18 years without any feelings toward or knowledge of our political system or what it means to live in a democracy'. In some cases ignorance and apathy mingled with feelings of cynicism ('politicians are all supposed to be honest but they are all ripping off the country') or fear ('I don't want to get on their files'). Even in the national capital where the largest proportion of the population is directly employed by the state, a survey in 1989 showed astonishing levels of ignorance about the Constitution and political matters. This showed how much ignorance was coupled with, and explained by, alienation from the political system. The Senate therefore urged the ALP government to embark on citizen education despite submissions which still warned, in dinosaur fashion, about the introduction of 'Foreign political equations such as "of the people, by the people, for the people"'.54 In 1991 the same committee reviewed the progress made. It had been slow, given its understanding of active citizenship established in 1989.
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An active citizen is not someone who has simply accumulated a store of facts about the workings of the political system - someone who is able to perform well in a political quiz. An understanding of how the social and political systems work is an essential element, but equally important is the motivation and the capacity to put that knowledge to good use. Essentially, it is a question of active commitment to democracy. An active citizen in the committee's view is someone who not only believes in the concept of a democratic society but who is willing and able to translate that belief into action. Active citizenship is a compound of knowledge, skills, and attitudes: knowledge about how society works, the skills needed to participate effectively; and a conviction that active participation is the right of all citizens.55
A view of citizenship which was holistic and did not conflict with liberal democracy and yet was 'grounded in the public sphere' meant one where citizenship 'is to participate in public practices which sustain, and to a large extent define community'. This required: a serious, reflective engagement with such community defining public practices. The engagement involves, but is not confined to, those formal, institutional, perhaps ritual activities through which a community seeks both to preserve and to transform itself. In a significant sense this requires a citizen to participate ingenuously in the community's practices, acknowledging the conceptual and attitudinal boundaries which prescribe the particular social and historical conditions of that community. At the same time the active citizen must be aware of the imperative to challenge and at times to transcend those boundaries.56
Citizen education was thus practical as well as book-learnt. The view was remarkably radical. We discuss its implications in the Conclusion to this book. Here we confine ourselves to the main achievements the committee noted in 1991. These were necessarily confined to existing or new curricula in schools. In 1989 the Australian Education Council had adopted in Hobart a national education policy. The different States, particularly where Labor was in power, had started to introduce courses in active citizenship in schools: in New South Wales, Queensland, South Australia, Tasmania and the ACT. The committee noted that the absence of curriculum materials had been partly filled by the production of the Parliament Packs and People's Power kits of the Commonwealth electoral and parliamentary offices. It claimed a 78 per cent utilisation of those kits in 1200 schools surveyed. Both kits were directed at primary schools although there was a much more sophisticated Parliament Pack for secondary and tertiary students. While both had limitations and could be criticised for their naivety, they were clearly a marked advance on the civics texts of interwar years and the dearth of any material after the Second World War.
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The school programs showed thoughtful combinations of formal study, visits to courts and parliament, and, above all, role playing and practical activity. Such innovations in education, with its strong emphasis on participation, were undoubtedly given a boost when Paul Keating, the new ALP Prime Minister, showed personal interest in promoting Australian citizenship in the context of the drive towards a republic for 2001. In 1992 he proceeded to fund research into citizenship, and when 1993 was declared citizenship year many public and private meetings were held to open up debate in the general public. 57 While these often started off with naive reference to community, Athens, Greek civics and national independence, the ideas were refined in the debate itself and then fed back into the Immigration Department to provide the basis for its further policy.58 Usually, these again stressed participation and played down communitarian views.59 We discuss the openings created in the Conclusion to this book. Unofficial Discourse on Citizenship: 1983-1993 The ethnic voice - that of a new subject - was first heard on public matters in this period. We devote much of chapter 5 to its expression in the media and by major spokespeople. Here we merely note that its views either paralleled, or were in advance of, the official positions we have just discussed. There was a general promotion of multiculturalism, coupled, when the ALP assumed increasingly jingoistic and contradictory nationalist positions late in the 1980s, with dismay. When Zubrzycki had made his report in 1983 he had made clear that there was no contradiction between retaining one's culture and loyalty to Australia. As the Age put it in discussing the Liberal Minister of Immigration's tour of Australia in 1983 to discuss multiculturalism and citizenship: Multiculturalism ... rests on the notion that Australian society contains within it a large number of culturally distinct ethnic communities, and that their presence, far from being a threat to national cohesion, has helped to make Australia a richer, livelier, and much more varied country than it was in the immediate post-war period. Provided our newcomers accept certain obligations - including a primary loyalty to Australia and its institutions and a willingness to contribute to the general good - there is no reason for fear that preservation of minority values will lead to disharmony and disintegration.60 The prevailing position in 1983, despite the residual racism, was that 'we can each be a real Australian, without necessarily being a typical Australian'.
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Such openness had led logically to a consideration of dual citizenship, already partly accepted through the concession that Britons could retain their British subject status and citizenship although all distinction from other naturalised Australians had been eliminated in 1983. The debate about dual citizenship also became important when Rupert Murdoch became a United States citizen in order to hold on to his investments in that country. This meant that he lost his Australian citizenship automatically. Both United States and Australian commentators disapproved of his decision. William Safire of the New York Times was reported as seeing that there was a problem ... with the treatment of citizenship as a convenience or accommodation. There should be more to it than that ... Murdoch's eyes may grow misty at Waltzing Matilda but his outlook is the opposite of nationalist ... He is the multinational man, a true 'citizen of the world', or at least of the free world. He is at home in London, New York and Sydney, and he pays homage to no political prince. His allegiance, I suspect, is more to universal concepts than to any mere political entity. He is by choice a man without a country ... Americans should remind him that allegiance means loyalty, sometimes passionate loyalty.61 The characterisation of Murdoch as an almost Kantian world citizen was certainly misplaced. Murdoch had defended himself in Australia in 1979 when he had proclaimed himself passionately Australian in reply to a question about how he regarded his citizenship status. He had then made a statement which would strike a chord with many 'new' Australians, once its terms were reversed. 'I regard myself as an Australian, running an Australian company which has large interests around the world. It is necessary for that company, and the pursuit of my duties in that company at this time, to spend more time out of Australia than in it. So far as I am concerned, that has no bearing on my love for this country or my feeling for it, or on my Australianness'. 62 When interviewed in 1985 Murdoch still stated that he wanted to keep his Australian nationality: 'I am not severing any links with Australia. I keep a home in Australia. I have a large family in Australia and I am going to continue to have the same emotions and feelings about Australia that I have always had. If it should result legally and technically in my changing the colour of my passports then so be it'. 63 This was certainly, evocative for many Australians and provoked a torrent of comment all of which challenged the notion that it was necessary to 'belong' to Australia body and soul before being a citizen, or that there must be one exclusive Australian identity. One letter which was typical was about Australian Jews in Israel, 7000 in all, many of whom had lived there for years but 'insisted ... that they had not lost their sense of
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Australian identity' although it was their 'destiny' to come to Israel. Another was from a woman who, having a husband who had become a Canadian, had automatically lost her Australian nationality. 64 Such correspondence made clear that the formal rules which insisted that a person turn their back on their past and identify completely with some other ethnic past or history was out of touch with the feelings of many inhabitants of Australia. In particular it focused attention on the problem of disallowing dual citizenship, which flowed from the insistence that each person have only one set of affects. What interests us here is the response of the Anglo-Celt voice to the innovations in citizenship by the ALP in the context of strong 'ethnic' support. They took up the positions expressed by Macphee in 1982. The major spokesperson was Professor Geoffrey Blainey. Blainey became notorious for his defence of the old Anglo-Celtic definition of Australian identity in his book All far Australia (1984). His tendency to slide back to 'white Australian' positions thereafter made him the object of suspicion by ethnic and progressive opinion as a covert racist. He always denied such allegations. By 1989 he was making comments about citizenship in response to the Report of the FitzGerald Committee on Australia's Immigration Policies which we discuss below. Blainey thought that it was ridiculously easy to become an Australian citizen, and that the push to ensure that more migrants take out citizenship was ill-advised. 'Why dragoon a new voter who knows little about the land, whose loyalties may lie elsewhere, and whose knowledge of English can be scribbled on a postage stamp ... People who have lived here only two years and know no English should not be compelled to vote. They should be positively forbidden to vote.' Like Macphee, Blainey believed that citizenship was a precious asset, and that when they did not know English migrants should not either vote or perform jury service, which the Prime Minister regarded as the 'responsibilities that determine whether you are truly Australian'. 65 Blainey's fear that English would no longer be the dominant language in Australia and that would end the hegemony of British standards, was shared by many letter-writers to the press. 66 His position was just the extreme end of a spectrum of opinion in a debate which reopened the issue of 'nationality' and the importance of 'belonging' to the national community. By the 1990s this had again become a central issue in political life here. By then it was enormously complicated. At first the official position on both sides of the political fence took up uncompromising 'nationalist' positions in response. 67 The papers noted that the government position was that 'Australian citizens cannot reasonably expect to have it both ways. According to this line of argument, citizenship is an expression of personal commitment to the country, and
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people who want to have dual or multiple citizenship are avoiding that single-minded commitment. Logically there may be some truth in this ... but what is logical, and also bureaucratically correct, is not always fair ...'. The paper concluded that 'however it was examined ... it is a complex and messy situation'.68 The government could attempt to clean that up by ad hoc alterations to the rules - like the abolition of the oath of allegiance to the Queen but it was caught in the logic of a contradiction between rules based on national allegiance and the real identities of its subjects. It could either follow Blainey, as despite everything it tended to do on that principle, or change tack. Its refusal to recognise dual nationality also led to practical difficulties, about which one letter-writer to the Canberra Times warned.69 This was that the Constitution banned from membership of parliament all dual citizens, or those who had not formally taken out Australian citizenship. In fact, this later became a real problem when parliamentarians of British origin who had not formally become Australian citizens were divested of their seats.70 As the debate on those removals made clear, it was frequently impossible (for example, in the case of Greek nationals) for a naturalised Australian to divest himself of his former nationality and citizenship, since that was governed by the law of the nation of former allegiance. The inappropriateness of the ius sanguinis rules to a modern, global world could never have been made more clear. In 1995 it prompted a re-examination of the refusal to allow dual citizenship.71 The New Nationalism It was estimated that in 1986 there were three million dual citizens in Australia. Many of these three million obviously consider it possible to share two loyalties. Ethnic community leaders and ALP members of parliament have openly stated that it is possible. The ALP position on the matter was increasingly inconsistent with these facts and trends. The Department of Foreign Affairs and Trade considers it no longer in the national economic interest to take the position it took with Murdoch. Moreover, the Law of Nationalities (1930) and the Convention on the Reduction of Statelessness have been superseded as irrelevant by Great Britain, New Zealand, Canada, Eire, Greece, Turkey, France and the European Union, all of whom find that nationalist rule impracticable today. Given Labor's pragmatic position on economic matters, it is thus difficult to understand its development of the 'new nationalism'. However, its contradictoriness has deep roots in Australian history. As we saw in earlier chapters, the drive to make Australia 'fully independent' of Great
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Britain did make the ALP and its leadership - even Whitlam - antiBritish. This was reinforced by the Coalition position on defence of the continuation of such British traditions here. On top of this ideological commitment to the nation, the 'nationhood' power implied in the Constitution has been important in the evolution of views of legal citizenship here. This very stress on national independence had made the issue of nationality central to self-identity in the ALP after Whitlam. A vast literature had been written in the 1970s and 1980s about the nature of this 'national identity'. It took over many of the themes discussed in chapters 2 and 3, but in 1983-93 it was also coloured by the very strong views of R. J. Hawke and Paul Keating. We may typify their views as equating Australian identity with the anti-British Celtic tradition: being Australian means identifying with the Irish Australian Catholic Republican collective memory. Commitment to Australia became the watchword of the ALP and was the preceding title to the FitzGerald Report of the Committee to Advise on Australia's Immigration Policies, published in 1988. In the Fitz-
Gerald Report commitment to Australia was understood as putting a brake on the telos of multiculturalism towards a dilution of whatever was Australian.72 Conservative newspapers approved of this report as much as ethnic spokespeople did not. Government plans to amalgamate separate 'ethnic' institutions like SBS radio and TV into the ABC were mooted.73 In chapter 5 we discuss how this trend against multiculturalism in the face of increasing migration from Asia encouraged a new racism to accompany the new nationalism fostered by the ALP. Several times Paul Keating expressed his view of what it is to be an Australian. At the Second National Immigration Outlook Conference held in New South Wales in 1992 he started by alluding to the film Strictly Ballroomy whose stars are Hispanic and American Australians. It 'was about the best of Australian values'. He had grown up with them. They were, on the outside, work, family, church, League (football), racehorses and rock and roll, and under the surface, a love of Australia and its life: 'a broad egalitarianism, a belief in social justice, the idea - I know it is a cliche but it is true - of a fair go for everyone'. All these, he asserted, transcend ethnic origins, so above all came the value of tolerance. 'So we should give credit to Australian democracy. We should not lose sight of the fact that along with the willingness of migrants to come and join in the life of Australia, and the willingness of governments to facilitate that, the essential preconditions for the success of the immigration programme were the values of democracy, tolerance and good will in which earlier generations of Australians believed.' It was this earlier democracy which had bred a readiness to change and to accept difference; dragging Australia out of its insularity and making it a winner in the new global market. 'The basic values of Australia
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support change. Our broad egalitarianism does not drag us down, it deepens our capacity to adapt... but Australia would be characterised by a stronger national identity as time passed.' Keating concluded by proposing that Australian citizenship be built around symbols like a national flag and constitutional change. 74 As if to emphasise that this was the ALP view and not simply an Irish Catholic view, the Deputy Prime Minister, who was a Protestant clergyman, had stated two years earlier that the tradition of social justice in Australia went back to the 1890s when the ALP was formed. 75 What is less obvious is that these views of the ALP leaders adopt in relatively unmediated form those of several historians and lawyers, whose intellectual input into such outlooks has been great. The greatest influence on Hawke and Keating had been Professor C. M. H. Clark, whose strongly anti-British views, they acknowledged, had influenced them in the 1970s and 1980s. By the 1990s he had been replaced as unofficial ALP historian by Professor Stuart Macintyre, who chaired the Report on Civics Education in 1994, and linked that education closely to the study of history.76 Even closer and more influential was Keating's speech-writer, Dr Don Watson, the biographer of the leading historian of the British Empire in Australia and founder of the Australian civil liberties organisations in the 1930s, Brian Fitzpatrick. Accompanying them were lawyers like Michael Kirby, Malcolm Turnbull and members of the Constitutional Centenary Foundation. Both the historians and the lawyers became supporters of active citizenship civics education in the 1980s and were closely involved in that aspect of policy formation. Both groups confused civics education with learning history, and thus, where migrants were concerned, the insertion of the historical interpretation into the pre-existing value system of the sort Keating had described in his National Outlook speech. Their view of history is therefore very important for citizenship in Australia as it indicates the openings and closures for the future which the collective memory of the ALP can allow. This mythical collective memory was based on a non-comparative approach to history and, therefore, over-rosy assessments of Australian history. Certainly intellectuals and politicians saw the errors of that history where women, Aborigines, and some other minorities were concerned. But not where democracy and human rights are concerned. These they confuse with popular egalitarianism. This allows them to claim that the first have always flourished here, denying Whitlam's understanding which allowed Australia to learn from outsiders. They thus tended to silence that voice on citizenship. Two illustrations from semi-official statements will suffice to make the point. The first is from the Report on Civics Education, chaired by Macintyre, which perpetuated the myth of a highly democratic citizenry at
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the creation of the Constitution and its practical expression. The second is from Sir Ninian Stephen, Governor-General under Hawke, and leader of the Constitutional Centenary Foundation chosen by the Civics Committee as the vehicle for civics education, who spoke on 'Our Democratic Constitution' at the opening of the Law Faculty at the University of Newcastle on 10 March 1993. The Report stated that the Constitution was the work of the Australian people and we therefore had democracy here, and Sir Ninian stated that we had true 'people' power here because Federation was by referendum of the demos. These are astonishing claims after the Report of the Constitutional Commission of 1988 which we discuss in chapter 7, and would have to be heavily nuanced to take into account realities. Both Macintyre and Sir Ninian probably fall into the category of progressive liberals, and Macintyre could be called a liberal-socialist, given his previous work and associations. But to write about one national identity which was democratic, as they did, was to create multiple problems of a theoretical nature. As Macintyre himself put it: 'What's [after all] in a Nation'? He replied: ... I see nations as fictions, realised fictions, founded on the myth of a community, a shared identity among a number of people who are never going to meet. That identity is based on a common idealised national core who somehow expresses their highest interests and is meant to command their highest loyalties ... But it is a common identity which I think has to be constructed and indeed is constructed historically through the nineteenth and early twentieth century. And I share many of its values. I think of it as something that, at its best, is tolerant, is republican, has a strong egalitarian thrust, at least as far as equality of opportunity and esteem go. But we need to avoid the illusion that the particular sort of Australianness is fixed and permanent and can or ought to be defended from change.77 The resonances in Keating's speech a year later are striking. To choose to say that much had been constructed already begged the question, as the conservative John Hirst made clear in a reply. What is crucial is who calls the tune. Does a newcomer have to 'come over' to what is already there? Or has there been a radical rupture with that past, of which multiculturalism is the symptom, and is a new social contract to be made? Does the global movement of labour, referred to so often in the debate about citizenship in the 1980s and 1990s, in fact create new premises which cannot be handled within the notion of nation as used in the new nationalism? Alternatively, can we see a richer understanding of the nation in the contradictions of those of the political-intellectual elite? We address that question in the Conclusion to this book.
PART II
Discourses of Exclusion
The starting point for discussion in this section is the nature of citizenship in the first four chapters of this book. In those chapters we pointed out that the best theory today states that the primary right of a citizen is the vote of equal value with that of every other citizen. It adds that that vote cannot exist as an autonomous individual contribution to a consensual notion of the public good unless two conditions are met. There must be the right to life, to freedom of movement, to conscience, speech and organisation. There must also be freedom from economic and social deprivation for each individual. Without all of these the vote would be an empty exercise. The best practice today embodies those notions. The postwar Constitutions of all advanced countries and all international instruments establishing universal standards incorporate the view of such theory. It needs to be stated immediately that both before and after Federation the rights of all Australian citizens have lagged far behind either 'best international practice' or any theory of what a citizen should be. It also needs to be stated that citizenship here has, until very recently, been based on nationality requirements which, when unpacked, were racist. As Britons, the whites who invaded this continent and established their state here after 1788 brought with them the existing legal-formal rules of citizenship of the Anglo-Saxon common law and legislation of the British parliament. The primary rule since 1608 had been that all people born on British soil were subjects of the British sovereign and enjoyed the rights of those subjects (the ius soli).1 In 1788 these included the right to certain civil liberties summed up as the rule of law; fair trial by one's peers; the right to life; to freedom of movement throughout the realm and to freedom of conscience and speech. They did not include 143
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most political rights. Until 1884 they did not give even adult males the right to vote. So in the nineteenth century the people were not sovereign as they did not control their representatives from below. Finally, they had no economic or social rights of any sort to which they were entitled by virtue of their status as subjects. So in 1788 even the British themselves did not have democratic rights, or the economic and social conditions which are necessary to make the vote meaningful. Matters were even more restricted for British subjects in Australia than they were for those who remained in Britain. Here the majority in the first fifty years of settlement were convicts or ex-convicts, so they could not have even the British rights until permitted them by the Governors of the colonies. A convict was, by definition, civiliter mortuus, that is, dead as a citizen.2 So while the whites gradually obtained something like British rights, they obtained those rights with an Australian twist. The country had been a great prison whose prisoners were gradually given some rights by the grace and favour of the state. Before 1855 the locally born, administered subject certainly had some legal and civil rights but he or she was much worse off than someone who had been born in England. After 1855 adult male suffrage existed in the colonies. Males thus had the vote nearly thirty years before the British (1884). But the malapportionment of electorates which favoured country districts, and the truncated nature of 'responsible' government did not make the people sovereign here. Moreover, there were no economic and civil rights here until the end of the nineteenth century and particularly until the Harvester judgment of 1907 established the right to a fair wage for male heads of families. Precisely because the Australian colonies did not have the rights enjoyed in Great Britain, their history became a clamour for such British rights, particularly up to 1855. Throughout the nineteenth century Australian whites outdid themselves in protestation that they were more British than the British. This self-identification was compounded by a more harmful notion: that Australia was better than Britian economically, socially and politically. This gathered force at the end of the century when male Australian whites were presented as Britons perfected. 3 The result of this history was a sense of national identity which was 'Anglo-Celtic'. Australians saw themselves as committed to the common law, the Westminster system and the Empire. Their sense of a 'crimson thread which unites us all' was enshrined in all Australian legislation concerning citizens in this century, up to amendments in 1983. It is there in the Naturalisation Act (1903), in the Nationality Act (1920) and in the Nationality and Citizenship Act (1948). The last Act defines an 'alien' as a 'person who is not a British subject, an Irish citizen, or a
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protected person'. There were some contradictions, but the overall understanding has been aptly put by A-M. Jordens in these words: All Australians, including the officers of the Department of Immigration, which was given the portfolio responsibility for administering the Act [that is, the Nationality and Citizenship Act] had no conception of what being an Australian citizen as distinct from being a British subject actually meant. This was because citizenship was conceptualised in relation to British culture and ethnicity, not in terms of the rights and responsibilities of citizens of the state ... The image of Australians enshrined in the Act, therefore, was that of an Anglo-Celtic people.4
It is important to note that until 1948 there was formally no such thing as an Australian citizen. All Australians were only British subjects. The citizen rights which they enjoyed - the vote which through its equal exercise by all reasoning beings makes the people sovereign and establishes a democracy, and what is needed to exercise that vote properly: freedom of conscience, speech, organisation and freedom from economic and social constraints - were all remarkably restricted in Australia until the election of the ALP government in 1972. There then began a change in Australian citizenship, which started from the recognition that Australian society was not simply Anglo-Celtic. The battle to emancipate Australia from its British 'mother' - to use the celebrated family metaphor - started to be won. What accompanied the recognition of the multicultural nature of Australia's population was the readiness to learn from the different ethnic groups.5 This acknowledged that the existing rules of the common law, the Westminster system and the economic and social standards were not above criticism. Crucial among these rules was that which demanded as a preliminary for admission to citizenship that a newcomer show he or she belonged to the national Anglo-Celt family. This was imposed by prerequisites for citizenship, such as proficiency in English, long residence, and other requirements summed up by many spokespeople as an expectation that 'aliens' would turn their backs on their cultural past. After 1972 that view was contested bitterly and the resistance of the Anglo-Celts to Whitlam's challenges to the status quo ended in his dismissal. But in the 1980s more and more of Whitlam's proposed innovations became practice through legal decisions, some legislation, and a greater observance of international conventions about ethnic minority rights. Regrettably, most recently a contrary trend, already evident at the time of the Bicentenary, has manifested itself. It takes the form of renewed ALP attempts to define a single Australian national identity to which all citizens are expected to subscribe. This is rather like a Celtic re-reading of the Australian past.6
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It comprises both a lapse back into a single version of our collective memory with all its closures, and a readiness to recognise that learning from people who did not share that collective memory meant taking into account their histories and their notions of the good citizen. The contradictions abound. The demand for the first - that all Australians belong to the national family - has meant continuing closures towards, say, 'Asian boat people' and Aboriginal people. The demand for the second has led to fostering the notion of the active citizen. Being a citizen depends on what you do, not what you get as a state hand-out. The openings for participation and self-management are many. 7 The next section of this book shows how the requirement that citizenship depends on belonging beforehand to an existing, structured national family has effectively functioned to exclude great numbers of people from citizenship here throughout Australian history. The situation has certainly improved over this century but it still exists, and the retreat in the 1980s and 1990s to that communitarian 'family' model is a retrograde step. The exclusion operates both outwards, towards all arriving newcomers, and inwards against the original inhabitants of the continent. Practically all Australians are or have been migrants. So the first group we examine are migrants. As the exemplar of a discourse of exclusion directed towards internal exclusion, we examine the Aboriginal people. There are other groups (sometimes also minorities) whom we could also have chosen - women, gays and the disabled - but the exclusion there, while it exists, is not so striking in the way it shows the impossibility of reconciling the national communitarian model of belonging with the realities of democratic inclusion as citizens today. We do look at those other groups in passing in these and later chapters. In dividing the groups the way we have, we are not endorsing the distinctions made by Kymlicka between rights which should accrue to those who come into a society by choice, and those born into one of its indigenous minorities^ That distinction seems forced. But our real objection is to the attempt to ground preferential treatment in some notion of justice on the intrinsic value of this or that community. Any priority given to the notion of community seems risky where citizenship, as what a person does, is concerned. Whatever the merits of such a view, we prefer to adhere to the neo-Kantian view of Bobbio. To wit, to ensure the autonomous citizen voter in the public realm, who is the foundation of any liberal democracy, it is always necessary to provide economic, social, educational and other rights in different proportions depending on the different levels of disempowerment of this or that group or linguistic minority. So affirmative action and the levels of uneven treatment required are always measured by what is needed in a particular context to turn everyone into the
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thinking choosing voter, who is only equal in the political realm and in no other realm. We discuss some of the problems with this in the Conclusion to this book. It is, however, historically true, that the list of rights has always increased as life has become more complex. There will be more rights, not less, in the future.9 That aside, it is quite clear that the problem is with any communitarian notion, not with this or that communitarian notion. It does not matter if the community is white or black, British or Australian, male or female. It constitutes itself as an exclusionary system for outsiders: We might ... think of countries as national clubs or families. The primary good is belonging to a community. What is at stake here is the shape of a community that acts in the world. Admission and exclusion is at the centre of communal independence. They suggest that different meaning of self-determination. Without them, there could not be communities of character, historically stable, ongoing associations of men and women with some special commitment to one another and some special sense of their common life.10 If a community insists on 'belonging' understood as adherence to its norms because say, it is majoritarian, or more powerful, outsiders can only 'belong' with difficulty and by gradual adaption. This may be possible if the pace of change is slow. It seems obvious that it will be more difficult if there is no negotiation with the outsiders who find themselves, for whatever reason, suddenly 'inside' a space which hitherto 'belonged' to someone else. How is negotiation possible without participation in a discussion or debate about what it is best for the different groups to do collectively? Anything non-negotiable will be a long-standing impediment to harmony. So it is a consequence of such reasoning that the best way to ensure the production of community out of difference is the immediate concession of the right to participate. But this would then mean that citizenship, as defined in chapter 1, would have to precede, or would be the way to 'belonging' and not the converse. To make newcomers want to 'belong' it is wise to give them an immediate right to participate as equals - or with equal voice - in forging a future together with the non-newcomers. Exclusion from citizenship should thus be minimal. Regrettably, adherence to nationalism in Australia, while greatly reduced over a century, has always existed and is recrudescent in the 1990s. The next section illustrates the effects.
CHAPTER 5
Discourses of Exclusion, Silencing the Migrant Voice
The old legal doctrine of once a migrant always a migrant was replaced by a new doctrine of once an Australian always an Australian. Gough Whitlam, 1980
The Migration Act (1958) provides for the deportation of permanent residents who, in their first ten years of residence, commit an offence which results in a sentence of imprisonment for at least one year. Deportation is not mandatory in these circumstances, but is a matter for the exercise of the personal discretion of the Minister, or his or her delegate ... The Act also provides for power to cancel visas on character grounds. The Minister may decide that a person is not of good character on the basis of his/her past criminal conduct or general conduct, or their association with another person, group or organisation reasonably believed to be involved in criminal conduct, or their association with another person, group or organisation reasonably believed to be involved in criminal conduct.
The Hon. Peter Baldwin, Minister for Social Security, 1995
It is clear that the demand - common to all nation-states - that someone 'belong' to the nation before that person is given the rights of a citizen - has become less and less exclusive over the half century since the first Australian Nationality and Citizenship Act of 1948. This half-secular trend is true despite its reversal since 1983 and, particularly, since the term of the Keating Labor government. But the story of Australian citizenship does not end with a study of that Act or matters referred to as citizenship. Citizenship and migration have always been confused in Australian history. Australia is a country of migration. With the exception of the Aborigines and Torres Strait islanders, to whom we devote the next chapter, the entire population is 149
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made up of migrants and their descendants. The citizen voice can be controlled by the control of migrants. In a country of migration like Australia, the possibility of becoming an Australian and the degree of exclusion start with the prior physical exclusion at the frontiers. Thus, properly speaking, exclusion is established not only with citizenship laws. The rules governing the state's relations with outsiders and then immigrants establish real rules of exclusion from the body politic. The first exclusion was racial. Until 1967 the appalling racism of the White Australia policy expressly excluded nearly all people of non-European origin from the right to permanent residence and therefore from ever being Australian nationals or citizens. While it was directed mainly at Asians, it also caught all others who were regarded as not being able to 'belong' to the Anglo-Celtic national family because of skin colour. In 1956 the rule for entry was that a person should be '75 per cent or more of European descent, fully European in upbringing, mode of dress and way of living'.1 But between those who were always kept aliens and never able to become citizens, there is the ever replenished category of those admitted as immigrants who live in Australia for some time before becoming citizens. Their lives are governed by the laws on migration until they become citizens - while they are proving that they have joined the national family. So, to understand how democratic citizenship is in Australia we must look at the Migration Act and similar legislation. This reality of the relationship between migration and citizenship has always been recognised in Australian legislation and institutional practice. Indeed, the administration of citizenship rules has always been by a subsection of the Commonwealth Department of Immigration (later 'and Ethnic Affairs') (DIEA). To consider Australian citizenship in isolation from migration laws is almost impossible, although it should be quite independent. Frequently the relationship is obscured but it exists nevertheless. Thus, in the amendments to the Citizenship Act in 1993, the ius soli was limited by stating in ss. 10 (i) that: a person born in Australia after the commencement of the Australian Citizenship Amendment Act 1986 shall be an Australian citizen by virtue of that birth if and only if: a) a parent of the person was, at the time of the person's birth, an Australian citizen or a permanent resident; or b) the person has, throughout the period of ten years commencing on the day on which the person was born, been ordinarily resident in Australia. A reference in this section to a permanent resident does not include a reference to a person who is, for the purposes of the Migration Act 1958, an exempt non-citizen.
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Similar cross-referencing to the Crimes Act and other Acts is common. This close formal connection between citizenship and migration law is recognised by the DIEA itself in these words: The closest relation which the Citizenship Act has with any other legislation is with the Migration Act 1958 ... The relationship between the two legislative regimes is evidenced by the following: the Citizenship Act draws on many concepts derived from the Migration Act... from 1 September 1994 the Migration Act will require Australian citizens to undergo immigration clearance. This will mean that an Australian citizen will be required to provide evidence of citizenship. Evidence is the presentation of an Australian passport, or other evidence of identity and Australian citizenship. An amendment in the Migration Legislation Amendment Bill 1994 will provide that a person has complied with this requirement if the relevant clearance officer knows or reasonably believes that a person is an Australian citizen. It is intended that 'reasonably believes' will include the administrative arrangements which will enable Australian citizens to enter Australia on an overseas passport, in particular, Australian citizens who are dual nationals and who in some circumstances seek to travel on the foreign passport. As evidence of Australian citizenship, and to facilitate entry into Australia, such Australian citizens can be issued with an Australian 'Declaratory visa' which is an administrative mechanism not granted under the migration legislation. Apart from those who obtain citizenship by birth or descent, the acquisition of Australian citizenship is generally closely linked to a connection with Australia, which is based on permanent resident status under the Migration Act.2
What is clear is that the passage to nationality and citizenship goes by way of the status of alien to that of permanent resident, whose status is defined in the Migration Act 1958. In 1994 there were about 1105 000 such people whom the state wished to take out citizenship. While they remain non-citizens it is difficult for the state to function efficiently and impossible to claim that a really democratic system exists since they live under laws which they had no part in making. The test of the appropriateness of citizenship rules to the liberal democratic polity they regulate is decided by how, and how many of the population, they exclude from such rights. We can state as a practical maxim that in a country of migration like Australia the more open the rules and the more easy it is for an immigrant to become a citizen, the more functional to liberal democracy those rules become. Overall, the exclusiveness has lessened dramatically in the century of Federation. Nevertheless, the exclusions which remain are giving increasing cause for concern. Moreover, when measured against international standards in Conventions to which Australia has subscribed concerning rights of legal and illegal migrants, refugees, ethnic and racial minorities, Australian domestic standards lag in theory and in practice. In 1994 Australian treatment of 'boat people' became an object of international opprobrium because it departed from rules for
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aliens established in international law. Moreover, as we pointed out in the last chapter, the extensive discretion of the Minister is increasingly criticised and the ALP government of 1993-96 was rebuked for its attempt to legislate away legal decisions applying such international standards. 3 The position of a permanent resident, the stepping-stone status to citizenship, is very shaky. Under the Migration Act (1958) the Minister could deport at discretion. This is a complete departure from the requirements of the rule of law given by Dicey for a Westminster system. 4 It means that legally, if a non-citizen migrant protests today, in word or deed, in an unauthorised way, he or she can face deportation, even if this is not often done. While this conflicts with international norms, given the sometimes horrendous consequences, it needs to be noted that what is unauthorised depends in the first instance on the national context. Australians are more conservative about what is politically permissible than are the residents of practically all 'source countries' of migrants. 5 The Minister and members of parliament can and do assert their right to listen to such 'democratic opinion'. As we have shown, the official discourse has nearly always been one of defence of local national traditions and hostility to other standards. This became clear in the debate on the amendments to the Citizenship Act in 1993-95. Some indicative passages follow: 'Our objective in this chamber and in this parliament should be to govern Australia for Australians. If people are unwilling to make an unswerving commitment to this country, to our Constitution, and to our head of state, then we have to ask why should we make room for them in this country. This is our country and we have a right to determine who comes here'. And 'Grisha was critical of what he saw was a lack of national pride. He said: "It seems very sad to me that all Australian Governments have tolerated in the past 15 years a manifest devaluation of national pride, [a] radical approach to our government system, [and] our flag"'.6 This means that the one million migrants who have moved from alien to permanent resident before being citizens, have not had their distinctive voices sufficiently heard on what it is to be a citizen. Even the very advanced preamble to the 1993 Citizenship Act amendments is understood unilaterally as promoting participation in and acceptance of already existing standards of political life rather than participation in and reformulation of such traditions of citizenship in Australia by such migrants. 7 Overall, throughout the history of migration to Australia, about 6 per cent of the population who are 'permanent residents' have risked deportation if they expressed political views which conflicted with those of the Minister and the DIEA, but there have been stages in that history. They are not so clearly demarcated as Whitlam's quotation at the head of this
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chapter suggests, but they exist nevertheless. We turn to discuss notable changes in the history of migration to Australia. In fact, while the rule 'once a migrant always a migrant' still exists, it now means something different from the years before 1973 (see table 4). With the exception of the original inhabitants of the continent, all inhabitants of Australia and subjects of the laws of the Commonwealth have been or are migrants. Australia is a country of migration. But the patterns of that migration have changed massively and are doing so in the 1990s. Tables 4 and 5 allow us to identify some of the patterns and emphasise that generalisations - without taking into account time scales - can be misleading. First, it was an Anglo-Celtic migration until 1947. Thereafter it included people of non-English speaking background (NESB). Recently, the most significant proportion of the latter have been from the Asian/Middle Eastern regions. In 1986 Asians made up 46 per cent and in 1990 79 per cent of the immigrants. This has meant vastly increased differences in race, religion and language within Australia (see figure 1). As against this, it has to be noted that the pattern up to their arrival was that of intermarriage and therefore a blurring of ethnic community borders: 60 per cent of Australians have at least two ethnically different ancestors and 20 per cent four or more. The second pattern which is clear is that Australia was a country of immigration for permanent settlement until the late 1980s. Thereafter there has been an increasing trend towards its being a place of temporary migration by temporary labour forces, above all students and skilled workers (see figures 2 and 3). These trends will continue given the commitment of both major political parties to a regional economic development. Paul Keating spoke of a vision for the future in these words: 'Everything else we do in the country depends on our success as a trading nation ... I believe that Australia must continue to improve its trade performance, and to do so must become increasingly part of Asia. Trade with Asia means jobs - good jobs, jobs with a future for current generations and succeeding generations'.8 We can anticipate that this will lead to the arrival of 'temporary foreign low skilled labour' on 'turn-key' projects. This would be the case particularly with large infrastructure projects in remote areas where the cost of using Australian labour would preclude such development. Relevant Australian authorities and trade unions would ensure that acceptable working conditions are enforced and that workers' contracts are honoured.9 Australian patterns would thus follow those of the European Union, and particularly the gastarbeiter of West Germany. This is the 'moderate' view. A more radical scenario is that of Professors Y. K. Ng and H. R. Clarke, who argue for completely open frontiers
154 Table 4
DISCOURSES OF EXCLUSION Estimates of overseas-born Australian citizens and non-citizens eligible for Australian citizenship, 1991-94
Eligible as at
Australian citizens
Eligible non-citizens
Total
Per cent of non-citizens
1991 Census June 1992 June 1993 June 1994
2 276 438 2 367 463 2 469 804 2 554 763
1 130 851 1 118 109 1 071 881 1 057 587
3 407 289 3 485 572 3 541 685 3 612 350
33 32 30 29
Table 5
Eligible non-citizens at June 1994 by selected country of birth
Birthplace United Kingdom and Ireland New Zealand Italy Malaysia Germany Netherlands Malta Vietnam Yugoslavia China (excluding; Taiwan) Greece Poland Lebanon Other countries Total
Eligible non-citizens
Per cent of total eligible non-citizens
434 689 163 852 53 277 34 159 25 898 20 512 16 778 10 067 9 045 7 972 5 307 4 600 1 357 270 073
41.1 15.5
1 057 587
100.0
5.0 3.2 2.4 1.9 1.6 1.0 0.9 0.8 0.5 0.4 0.1
25.5
Sources: 1991 Census matrix Table CSC6171; DIEA Citizenship collection; OAD data; Australian Bureau of Statistics, Catalogue No. 3302.0 - Deaths, Australia. on the grounds that it would lead to no economic harm whatsoever. They realise that the exploitation of cheap Asian labour would lead to a change in standards of living in Australia. To compensate would require residents to own all the resources used on the one hand, and that the immigrants be admitted very quickly to voting rights, on the other. 10 This, too, is close to developments in the European Union in the 1990s. Ng and Clarke recognise better than does Stahl the implications for citizenship of relative free and rapid labour movements, with lower wages and conditions for the new temporary workforces. Another pattern to be discerned is that where immigrants to Australia have usually arrived for economic reasons, in the period immediately
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1.2 1 g 0.8
I 0.6 0/2
0
Total
United Kingdom and Ireland
New Zealand
35 30 25 •3
15 10 5 0
Malaysia
Germany
Netherlands
Malta
Vietnam
Yugoslavia
China (excluding Taiwan)
Greece
Poland
Lebanon
14 12 10
I 1991 Census 5 June 1992 • June 1993 • June 1994 Figure 1 Trends in the number of eligible non-citizens of Australia by birthplace Source: 1991 Australian Census
DISCOURSES OF EXCLUSION
156
1
(a) Family migration 70
1
60
1
50
I 40
-
20 10 0
1984
1 I-
1985 1986 1987 1988 1989 1990
1991
Year
| Applications
| Visas
Pipeline
(b) Business migration 12 10
I c
. 1984
1985
1986
1987
1988
1989
1990
1991
Year
| Applications
| Visas
Pipeline
Figure 2 South and East Asia - applications, visas issued and cases carried
forward, by migration program component, 1983-84 to 1990-91 (year ended 30June)
SILENCING THE MIGRANT VOICE (c) Employment migration
1984
1985
1986
1987 1988
1989
1990 1991
Year
| Applications
| Visas
Pipeline
(d) Refugee migration
1984
1985
1986
1987
1988
1989
Year
| Applications
Figure 2 (cont.)
| Visas
Pipeline
1990 1991
157
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DISCOURSES OF EXCLUSION
after the Second World War, and after the Vietnam War many refugees also arrived. By 1987 the official figure for such people was 450 000, making Australia the biggest host country per capita of population, together with Canada. 11 But since the Asian refugees started to arrive - 50 per cent of visas to refugees are granted to Asians - the picture is less rosy. In 1993 there were 32 400 Asians with refugee status in Australia, 0.002 per capita of the population. The bulk of these 'refugees' are Chinese students (15 000 to 20 000) who, after the Tian An Mien massacre were allowed to extend their temporary visa up to four years.12 In 1996 there were also 2083 'boat people' who were regarded as illegal migrants and incarcerated on arrival. In summary, overall Australia has entered a migration pattern like that of much of the regionalising, globalising world. Today the majority of migrants come to work or study without an initial intention to stay, and the government(s) base their expectations on that situation. 13 This has been summed up thus: The analysis of the causes and dynamics of migratoryflowsfrom third world countries to industrialised ones suggests that the phenomenon is relatively new, expanding and hard to control. Emigration from these countries cannot be compared with the traditional voluntary emigration of labour. This, in fact, is generally regulated by international agreements from which countries of origin and destination mutually benefit, the former in terms of unemployment reduction and currency remittances, the latter in filling job vacancies. Reducing migratory flows which exceed industrialised countries' absorbing capacity has become a necessary target that calls for international consideration.14
From Alien to Permanent Resident: 1945-1972 The Migration Act (1958) requires all persons entering Australia to have an entry permit. All those who do not are 'prohibited migrants'. Those who are admitted are divided into temporary and permanent residents, the first having a fixed limited period during which they may stay in the country. Only the latter can become citizens and under the Citizenship Act they were aliens until they did so (up to 1987). An 'overstayer' falls, by the Migration Amendment Act (1992), into the category of an 'unlawful non-citizen'. Each of these are legal categories with particular, differing rights established both by domestic law and by international Conventions which Australia has signed. These are: the International Covenant on Civil and Political Rights (ICCPR); the International Covenant on Economic Social and Cultural Rights (ICESCR); the First Optional Protocol to the ICCPR; the Second Optional Protocol to the ICCPR; the Convention on the
159
SILENCING THE MIGRANT VOICE (a) 1983-84
(b) 1986-87
Family (71,1%)
Family (63.1%)
/Refugee (13.2%) Refugee (14.8%) Business (3.8%) Employment (11.9%)
(c) 1990-91 Family (47.0%)
Employment (7.0%)
(d) 1986-87to 1990-91 Family (52.7%)
Refugee (7.0%)
Employment (34.8%)
iusiness (11,2%)
Business (7.0%)
Refugee (10,2%) Employmi (24.5%)
Business (12.6%)
Figure 3 South and East Asia - visas issued, by category, 1983-84, 1986-87, 1990-91, 1986-87 to 1990-91 Source: Stahl, p. 47.
Elimination of all Forms of Racial Discrimination (CERD); the Convention against Torture and other Cruel, Inhuman or Degrading Treatments of Punishment (CAT); the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW); the Convention on the Rights of the Child; the Convention on the Prevention and Punishment of the Crime of Genocide; the Convention on the Political Rights of Women; the Convention on the Nationality of Married Women; the Slavery Convention of 1926 (as amended) and the 1953 Protocol amending the 1926 Convention; the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery; the Convention on the Reduction of Statelessness; the Convention relating to the Status of Stateless Persons; the Convention relating to the Status of Refugees and related 1968 Protocol. It is notable how far the Australian standards diverge from the international standards, either by reservation or by simple failure to implement those international standards in domestic legislation. Typically, a person is much better protected by the international standard for refugees which today takes into account the changes which have ensued
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DISCOURSES OF EXCLUSION
since that was first defined in 1951 in the Geneva Convention, than they are by the Australian standard which adheres strongly to a most restricted interpretation of that status. 15 What is most invidious is the ministerial delegate's discretion to revoke a status or to prevent translation from one status to another which brings increased security. For example, an immigration officer refused refugee status to an Afghan on the grounds that he had secretly carried weapons for the Afghan resistance and was therefore not of good character and that his wife's traditional dress 'suggested she might not have the personal qualities likely to facilitate successful resettlement in Australia'. Although this exercise of the discretion was reversed on appeal to the Federal Court, it highlights the problem of the discretion. 16 The powers are so wide and so cavalierly used that they are frequently contested, through the mechanisms of appeal to the Commonwealth Ombudsman and the Administrative Appeals Tribunal. Aliens From the point of view of citizenship, both temporary and permanent residents were aliens until the abolition of the term. Only the permanent residents had the passive rights of Australian citizens and even they did not have active political rights, no matter how long they were resident. Section 51 (xix) of the Constitution vested power to legislate for 'naturalisation and aliens' in the Commonwealth. In Robtelmesv. Brenan17 the Chief Justice had stated: 'the power to make such laws as parliament may think fit with respect to aliens must surely, if it includes anything, include the power to determine the conditions under which aliens may be permitted to remain in the country, and the conditions under which they may be deported from it'. It certainly allowed their exclusion from some of the professions, and might have excluded them from the right to own property. 18 At the end of the Second World War it was decided that the Commonwealth had the power to make laws concerning aliens which conflicted with international law, so that they could be conscripted into the armed forces except for wartime service. 19 Such alarming assertion of national norms was legislated into the Aliens Act (1947). To understand its tenor, we recall that non-Anglo-Celts, often European refugees from Fascism, had started to arrive in 1925-39, The attitude then is summed up in the following story: the Australian delegate at an international conference in Switzerland in 1938 stated apropos the plight of the Jews that it would 'no doubt be appreciated that as we have no racial problem we are not desirous of importing one'. 20 During the war many of these peo-
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pie were treated as enemy aliens and placed in internment. Great suffering was caused to former Italian and German nationals. The most notorious of such cases was that of the 'Dunera boys', mostly anti-Fascist Jews who were interned on arrival in Australia after experiencing great discrimination on the voyage. The confusion of the 'other' with the enemy and an abiding suspicion of foreigners was pervasive until the 1970s. It often lapsed into the racism which the Jewish refugees had hoped they had left behind. The Aliens Act conflicted with many of the principles in the UN Declaration of Human Rights (1948) and the Geneva Convention on Refugees (1951), as well as with the ICCPR (1966), all of which Australia signed. It imposed registration of all aliens; notification of all name changes and changes of address and employment by aliens; and it restricted their freedom of movement. By 1966 there was a notification and registration rate of 85 to 90 per cent after amendments allowed notification once a year. Commenting on this Jordens has written perceptively: There were several important similarities between the status of aliens in the 1950s and that of Aboriginal protected persons. The political and civil rights of both were restricted by legislation: federal legislation in the case of aliens and State legislation for Aborigines. Both were required to register with the relevant authorities. Under the Aliens Act (1947) non-British migrants aged 16 and over were required to register on arrival in the country and notify the Department of Immigration of any change in their address or occupation. Aborigines were required to register with the Aboriginal Affairs Board. Both categories of residents had to apply for citizenship rights and both could have them withdrawn. The government policy of 'assimilation' was the same for both. Aborigines in Queensland had to obtain the consent of the 'protectors of Aboriginals' before they could accept employment or move from one district to another. The 170,700 refugees who entered Australia between 1947-54 under an agreement between Australia and the International Refugee Organisation could not change their job without the permission of the Department of Immigration's Regional Directors. Most importantly, both aliens and Aborigines were excluded from the imagined community of Australian citizen.21 It is fortunate that the inefficiency of the Australian state meant that these requirements for aliens were inadequately policed. Aliens were, however, often excluded from social benefits, including invalid pensions.22 In the years under consideration, all assisted migrants had to surrender their passports for two years, and were therefore unable to leave the country except for New Zealand where a passport was not required for entry from Australia. While this was a breach of different Conventions and international law permitting free exit, the Australian state affirmed
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DISCOURSES OF EXCLUSION
the right to protect its investment in this fashion. Reimbursement of the fare resulted in return of the passport. The real criticism of the legislation came over the wide powers of the Minister to deport aliens. Deportation could be ordered if the conduct of an alien were 'such that he should not be allowed to remain'. There was no requirement for hearings in open court because that might require the disclosure of 'security information'. 23 In the period of the Cold War, and a later association and alliance with the United States in the Vietnam War embodied in slogans like 'all the way with LBJ', this section of the legislation was extremely threatening. Any alleged crime in another country could be grounds for extradition. Although political offences were expressly excluded, mere membership of a Communist Party was a criminal offence in many countries whence our migrants then originated. Any migrant 'on the left' who raised his or her voice against the existing Anglo-Celtic political culture faced possible expulsion. The price of an alien speaking out against the Australian political system was, in fact, high in the 1950s and 1960s when witch-hunts of Communists were common in Australia. Often, left-wing aliens were refused the right to naturalise, keeping them permanently aliens and apparently at risk of sanctions. A not untypical case was that of George Zangalis who was refused naturalisation several times after 1950 because of his Communist affiliations.24 A total of 450 alleged Communists were refused citizenship up to 1969. No reasons were given. By the end of the 1960s such state anti-Communist 'zeal' was arousing press criticism. Aliens from Whitlam to Hawke One of the first decisions of the Whitlam government was to allow 'migrants who are members of the Communist Party to become Australian citizens'.25 This ended the 23-year-old Liberal-Country Party ban. By then, perhaps 551 migrants had been excluded on the grounds that they were Communists. But Whitlam's government could make prouder boasts. His innovations implementing the rights to which migrants were entitled under various international Conventions which Australia had signed but ignored allowed migrants to have their voices heard about politics for the first time. After recalling the alarming racist complicity of the ALP and the Coalition in the 1960s, Whitlam ensured the real end to the White Australia policy. He also ended the discrimination of the Aliens Act and ended the doctrine in Walsh and Johnson by changing s. 30 of the Crimes Act. This section had made a naturalised Australian liable to deportation for advocating the overthrow of any 'civilised' country by force and violence. Its words were replicated in s. 50 of the
SILENCING THE MIGRANT VOICE
163
Migration Act as a ground for a ministerial order for deportation. When the Crimes Act was introduced in 1926 the Attorney-General of the time, J. G. Latham, later ChiefJustice, had stated that the section was designed to catch those 'foreigners' who voiced catchwords 'which were invented for the purpose of appealing to the downtrodden proletariat of certain European countries'. 26 Throughout this legislation there could not be a clearer expression of the intention to silence migrants' views about politics. Its racist overtones are the more significant given the national importance for over twenty years after 1926 of the Anglo-Celt figure who expressed them. Whitlam's legislation of the standards in the Convention on the Elimination of all Forms of Racial Discrimination effectively ended all open official racism of the biological sort. But as we will see, 'deep cultural' racism was more difficult to eradicate, as it is implicit in all communitarian nationalisms. While it appeared that there would henceforth be no impediment to free expression of political views by migrants, through the ending of the second-class citizenship which the deportation provisions created, this was regrettably not so. This was because the ministerial discretion in the Migration Act was not ended and has remained, despite the amendments to the Citizenship Act in 1973, 1983 and 1986 discussed above. It is possible that innovations which allowed the decisions of the Minister to be appealed were regarded as sufficient safeguard. When Whitlam was dismissed in 1975 in fact discrimination against leftist migrants appears to have worsened. It was certainly still common. 27 Dr Jim Cairns claimed that the refusal of citizenship was extended to associates of the ALP as well as to Communists after the return of the Malcolm Fraser government. The grounds were still those arising from the 'character assessment' requirement which remained in the Migration Act. When migrants used the institutions proposed or set up by the Whitlam government to object to such use of ministerial power, notably the Administrative Appeals Tribunal and the office of the Commonwealth Ombudsman, these proved of little help. Administrative law reforms did not make a dent in the combination of Anglo-Celtic attitudes among the judges, and the prevailing legalism. This became quite clear in the Salemi cases. Ignazio Salemi was an Italian Communist who arrived here on a temporary visa in 1974 and overstayed, thus becoming a 'prohibited migrant'. When the Liberal Minister MacKellar declared an amnesty for such overstayers, Salemi applied and was declared ineligible. He was not allowed to put his case in a hearing and therefore sought a declaration that the Minister had to observe the rules of natural justice. Thus, he called upon the Australian state to observe the basic rule of
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DISCOURSES OF EXCLUSION
administrative law. Before discussing the High Court's refusal to grant the declaration, it is important to note that while here he had set up FILEF (Federazione Italiana di Lavoratori Emigrati e Famiglie), a social service agency for Italian migrant workers and their families, had established the newspaper Nuovo Paese and had set up a branch of the Italian Communist Party in Australia. Lack of success meant silencing a migrant voice about politics. The court decided that he had no 'legitimate expectation' of such a hearing. Nor was the ministerial discretion subject to such rules. Salemi went underground, was run down, bundled to the airport and flown to Italy the day he was caught. He was fortunate that the destination was a 'civilised' country. Salemi had used administrative law. This was supposedly reinforced by the Administrative Appeals Tribunal (AAT) (1975) and the Ombudsman Act (1976). But again the cases tended to follow the restricted reading in Salemi, especially as expressed by the Chief Justice, Sir Garfield Barwick.28 In both Drake and Pochi the power of the AAT to control the Minister's discretion was not stressed. Indeed, in the Drake case, the Minister's own standards, even with regard to community institutional matters which demanded respect from aliens, were accepted as the relevant standards. In the Pochi case, while it was made clear that standards of natural justice had to be observed in assessing a decision to deport, the Minister pursued the matter to the High Court. The court only refused to hear the appeal because it could, under the legislation, have resulted in a decision which the Minister was entitled to ignore. The Pochi case is interesting as it shows how a person who is as close to being a citizen as appears possible was subject to the power to deport. It is useful to give an account of the case: Pochi had come to Australia in 1959. He married a naturalised Australian and had three children who were citizens under the ius soli. In 1975 he applied for citizenship and his application was approved. Then because of bureaucratic bungling he was unable to take it out. Pochi was convicted of drug dealing and served a jail sentence which brought him within the s. 12 power to deport. The Minister ordered the deportation on the basis of circumstantial evidence that Pochi could be further implicated in the growing of cannabis. It was a matter of mere suspicion which the AAT did not think was sufficient. The Minister appealed unsuccessfully when the matter was referred back to him. Clearly, the assertion of discretion by the state was strong. 29 Together, all these cases made clear that the law provided little real defence of the migrant voice. Mr Pochi was certainly no Salemi. Nor indeed, was Mr Drake. But it is worthwhile considering the effect of such decisions on migrants who challenged deportation. Even if we leave aside the taint of double jeopardy for people who had served their
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sentences, it was disconcerting, to say the least, not to be allowed to hear what police claims about your conduct were being made, on the basis of which you would be deported. It was doubly so when the Minister had stated in his own list of what should be the guidelines words like these: 'Such persons will have revealed by their conduct either that they are prepared to overthrow existing institutions accepted by the Community or that they are unprepared to accept and adhere to standards by the Community or its members [sic] as revealed in its laws'. It was even more disconcerting when the AAT had stated that it would be manifestly imprudent for the tribunal to override a ministerial policy and to adopt a general administrative policy of its own.30 Certainly, in the second half of the 1980s the High Court adopted a much less restrictive view of its role and those of tribunals. Yet even in that decade there was little real change in the disempowerment of aliens and permanent residents. Aliens and Permanent Residents: 1984-1995 In 1978-95 the new phenomenon in the history of Australian migration was the 'boat people'. These were people who claimed refugee status after fleeing East Asian countries in small boats and landing illegally in northern Australia. After 1989 an average of 150 arrived each year and were immediately detained in camps in remote areas of Australia like Port Hedland. Until they arrived Australia had enjoyed a good reputation for its reception of refugees, despite the Aliens Act.31 Australia accepted 21 917 persons under refugee and humanitarian programs in 1981-82. By 1992-93 this had dropped to 10 939. By the latter date poor countries like Jordan, Malawi, Swaziland and Armenia had a 1:20 ratio of refugees to population, and countries comparable to Australia, like Canada and Sweden, had between 1:74 and 1:62. Australia's ratio was 1:100 plus. Australia also gave less than half the amount of aid than did similar countries for the refugees in those poor countries. This fall-off in concern corresponded with the arrival of 'Asians' as a majority (68 per cent) of new migrants and potential citizens here. The treatment of 'boat people' here increasingly made Australia open to condemnation by international opinion, particularly where the ministerial discretion was concerned. This had, in practice, become even wider than it had been. The discretionary section of the Migration Act was accompanied by ss. 21 and 50 of the Citizenship Act which allowed the removal of citizenship if it had been obtained fraudulently or if the person had received a criminal conviction and sentence of more than one year while still an alien or permanent resident. However, the
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relevant words were those which stated that 'if the Minister is satisfied that it would be contrary to the public interest for the person to continue to be an Australian citizen' he could order a deportation. The failure to identify what offences had to be committed made this an extraordinary discretion. During the Fraser government in 1975-83 condemnation of 'unAustralian' forms of political activity had increased significantly, with trumped-up charges of terrorism, notably against the Ananda Marga group. 'Refugees' arriving from countries where the only option was resistance could well anticipate the discretion might be used against them if they stepped out of line. Indeed, in the case of Prasad (1993) which involved the deportation of a Fiji Indian after massive persecution of her fellow Fiji Indians following the Rabuka coups, a very wide understanding of the Minister's power was given by the AAT. 'Public interest' was a term 'embracing matters, among others, or standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well-being of its members'. 32 While the ministerial discretion power had only been used five times since 1958, this was unlikely to reassure those who arrived without permission. If even citizens who disagreed with Australian political practice, or those who did not believe that local political norms were the best and should be accepted, were liable to deportation, why should a refugee feel secure? Australia was a place whose traditions went back to Kisch and to Walsh and Johnson, and to other cases which had made a migrant always a migrant. Anxiety about speaking out or organising too openly was almost inevitable. The 'boat people' were alarmed by the Minister's exercise of his powers, above all to deny the legal process in breach of the ICCPR (article 9(4)) which states that: 'anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that the court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful'. 33 This is the position of most international instruments dealing with migrants claiming refugee status. 34 The claim of the Minister that the review process under the Determination of Refugee Status rules of 1989 was taking too long and had to be speeded up did not please international observers, shocked by the pictures of struggling, weeping people being forced on to planes for repatriation. Many people felt that they were destined to an unknown fate, particularly those forced to return to China. The High Court also held that the DIEA's handling of delays in obtaining relevant information was unacceptable if it meant detention beyond the internationally accepted limits for detention without a hearing. 35
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In sum, the plight of the 'boat people' and other refugees in a world marked increasingly by migration of that sort highlighted the deficiencies of the Australian legislation. Yet, the way the discretion was exercised - in an increasingly exclusive fashion - only makes sense when we remember the emergence of the 'new nationalism' of the HawkeKeating era. While this ideology is careful to be politically correct and not to criticise 'sacred cows' like multiculturalism directly, it has encouraged the re-emergence of a discourse which is sometimes racist but more often a fierce defence of the goodness of the Australian national identity.36 Moreover, this 'new nationalist discourse' made quite clear that the right to cultural diversity did not include the right to criticise existing political and legal structures in Australia. The National Agenda for a Multicultural Australia of 1989 stated quite clearly that the earlier prodigious waste of overseas skills did not mean that we should dismantle or repudiate our institutions in order to start afresh. Our British heritage is extremely important to us. It helps us define an Australian. It has created a society remarkable for the freedom it can give to its individual citizens. It is a large part of what makes Australia attractive to migrants and visitors. It is a potent source of unity and loyalty ... Rather it is the intention of the Government to make an institutional heritage much better for us by enhancing its capacity to respondflexiblyto the needs of an ethnically mixed population. This refusal to extend multiculturalism to the public realm facilitated the reassertion of the right of a nation-state to consider its interests first when faced with the problems of globalisation. This was clear in the debate on the amendments to the Citizenship Act in 1993. These were seen by many conservatives as undermining Australian nationalism. Such nationalism, even if not strident, has always silenced the migrant voice about political arrangements in this country except for a brief period under Whitlam when it was heard. In 1995 it was again increasingly out of tune with official positions about citizenship. From One Voice to Many: to Cacophony? The ethnic voice about citizenship could only be heard after multiculturalism became policy. We seek first to illustrate this by examining the discursive patterns at the Australian Citizenship Conventions held between 1950-70. This allows us to highlight themes which emerged in the 1980s from ethnic spokesmen and women. To do this properly would require a whole book to follow up what appears to come from a more tentative study of the ethnic press at key dates when migration and citizenship rules were changed, for example, in 1983, 1986 and 1993. We
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DISCOURSES OF EXCLUSION
concentrate on the views of the communities who have most often taken out citizenship - the Italians and Greeks and the Vietnamese/Chinese - through their community newspapers of the 'left' and 'right'. The British and New Zealand immigrants have already been discussed by implication in previous chapters. The salient feature of the Italian and Greek newspapers at these dates is a marked scepticism about the unchallengeable nature of the AngloSaxon tradition of liberal-democracy and the rule of law. In the Vietnamese press in the 1990s there is doubt about the privilege given to the notion of an autonomous citizen individual with rights rather than duties. Both the southern European and Vietnamese press are totally negative about adherence to a mythical Australian family with one collective memory or that it should be the basis for admission to citizenship. We consider below how far such views are catered for in public official debate about rearranging Australian institutions of government. A 'minimalist' constitutional reform clearly does not consider them at all. By way of example of views in both migrant presses we use the discussion of, and response to, the semi-official Coalition endorsement of the 'Blainey' attack on multiculturalism, given by David Barnett in the Bulletin in 1986.37 Barnett had advanced the view that what it was to be an Australian and an Australian citizen was not sufficiently inculcated into migrants. II Globo, a conservative pro-Catholic paper which was the most read paper among Italo-Australians, replied: This is great?! Let's teach Italians and Greeks that something called 'parliamentary democracy' exists in Australia and the world, and something else as well - an ambiguous brotherliness called 'mateship'; that the concept of the Australian family is superior to that of the traditional Mediterranean family ... that Australia is irreversibly a monarchy under the crown of her Britannic Majesty ... and that thanks to the 'common law' in 1986 a thief charged in Melbourne can be judged on the basis of procedures, criteria and decisions codified when his medieval predecessor was surprised in the chicken run of an English county.38 And, to accompany this scathing rejection of what was reaffirmed in great part by the Hawke government in the National Agenda for a Multicultural Australia in 1989, we take words from Nhan Quyen (human rights) which explained that Vietnamese migrants to Australia sought a life which would provide them with the economic security, peace, freedom and love. Professor Trang Thomas added that 'Vietnamese people function as family units. Assistance within the family is taken for granted. Familial duties were seen as of paramount importance. Individual happiness, privacy, choice are certainly not as important as family unity and honour'. 3 9
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Both positions conflict with the public official views of citizenship in different ways. The degree of difference can first be gauged by comparing them to those views expressed before a migrant could safely give his or her views on political matters, let alone in a mother tongue, in 1950-70. The Citizenship Conventions: 1950-1970 The first of these Conventions was held in 1950. None of the delegates came from a non-English speaking background (NESB), although three such migrants did speak. The initial object of the Conventions was to facilitate assimilation into the Anglo-Celtic community by promoting coordination of the work and experience of private organisations like the Good Neighbour movement. The migrant was still understood as a 'reffo' escaping the old world and leaving its legal and political norms behind. Even as late as 1957 the Minister, A. G. Townley, addressed the Convention in the following terms. Migrants were the 'capital' with which Australia would be built. No monetary assessment can be made of the value of an individual, although it has been estimated that the cost of rearing and training a person during the early unproductive years is something like $5000. On that basis Australia acquires each year about $500 000 000 worth of rearing and training under its immigration programme because immigrants bring to this country the skills and knowledge they have acquired. Such 'labour-power' was acceptable provided that the following caveat was observed: 'A basic tenet of our post-war immigration policy has been that Australia must welcome all people from the old world who meet our high standards of character and health and who are ready and able to merge successfully into the Australian community'. 40 Given what we have discussed in previous chapters, this complacent demand for assimilation is unsurprising. Indeed, a preference for Britons was openly stated throughout the 1950s because of the supposed ease of their assimilation. The continuation of cultural and political difference was not even considered. An application for citizenship by a NESB migrant was 'placing the seal upon his membership of our community and upon his intention to identify himself permanently with us'. 41 The communitarian logic led to Menzies' assertion in 1962 that the expected adherence to the heritage of British traditions - where 'the nation is greater than its parts' - meant attaining the goal of forging 'one people' for Australia. 42 Lord Casey went further by telling migrants that until they became Australian citizens they would not be accepted: 'until you do this, however
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well we may like you, you will not become one of "us".' He even urged them to lose their foreign accents in order to merge (this without the least self-consciousness about his own accent). The Conventions became occasions for awarding prizes to 'good' citizens. The NESB recipients were often ready to endorse the host society's view that Australia was the best of all possible worlds. It was markedly richer and easier than most of the old world in the 1950s and early 1960s. On the eve of the Whitlam era, most Italians appear to have been so intent on achieving economic security for their families that they were apathetic even when insulted about their own civic traditions. 43 Nevertheless, the different views of the migrants themselves started to emerge in their group reports to the Conventions. These groups were increasingly made up of NESB migrants, though until the late 1960s they were not usually from southern Europe. When they spoke, the understanding of citizenship as obligation and service to a generous Australian state 44 was replaced by something rather different. By 1965 the common refusal to 'naturalise' because so many felt that 'once a migrant always a migrant' had led some to enter into a 'vigorous debate' about Australian norms and ideas. The notion that they should assimilate was replaced by the less obliterating notion that they should integrate. It would be some time before a readiness 'to adhere to the crown' and to learn English gave way to a more militant voice. 45 But some notable themes which presaged a different voice in the future had emerged even by 1962. In this, the migrants asserted their rights to be the subjects and not the objects of citizenship. In that year Dr Ulrich Englebert, a naturalised German, noted the danger of relying too much on statistics to 'understand' migrants. Instead, he suggested that subjective attitudes were important especially when migrants first arrived and 'there was bewilderment, anti-climax and emotional instability'. The choice to become a citizen was not simple if there was not 'complete equality' in the exchange of views. Professor Morven Brown summed up his group's views by emphasising the different cultural backgrounds of potential citizens in a remarkable speech which foreshadowed multiculturalism. He said: 'Our destiny does not lie in our becoming more British or learning to be Dutch or Polish or Greek, or even learning to be parts of countries or to share things with them as nations. It means absorbing those ideas, skills and tastes that will further enrich and refine our own national way of life'. 46 The suggestion that the motive for taking out citizenship was 'full equality' did not mean a mindless refusal to, say, learn English. Rather, it was suggested that the learning of 'foreign' languages be made a priority. This muted difference of the 1960s gave way with the development of
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multiculturalism and the consequent amendments to the Migration and Citizenship Acts in the 1980s. It needs to be reiterated that the innovations of the Whitlam government were short-lived and only became practice in the late 1970s. The Migrant Voice In the 1980s the ethnic press gave little more coverage to local politics than it had earlier. 47 But this very focus on world politics rather than those of Australia showed a different mode of thinking about politics which is highly significant. It was not the same style as that in Australia's oldest continuous ethnic newspaper, Le Courier australien, which served an audience of people who saw themselves as expatriates and wrote only of French citizenship. Rather, it was the style of people who did not agree even with the progressive official opinion on such matters but had their own views on what Australian citizenship should involve. This was true whether they were papers of the 'left' or 'right'. Of course, left-leaning newspapers like Neos Kosmos usually protested about discrimination against Communists and fellow-travellers, and others did not. For example, even in 1969 it contained lengthy reports of a rally against that government policy. It demanded the end to the policy on the ground that after fifteen to twenty years' residence anyone should have the right to a first-class citizenship. Moreover, it insisted on full freedom of political thought and speech. Contrarily, the Viet newspaper Nhan Quyen hoped 'to never see the presence of communism in this country'. 48 On such specific issues II Globo and LaFiamma occupied the ground between. But the newspapers were united when it came to fundamental issues of nationality and citizenship. Especially antipathetic was the use of the Anglo-Celt model to exclude the views of outsiders. For example, the proposal by John Howard (then on the backbench in Federal Parliament) in 1988 - in the wake of the Blainey debate in 1984 - that Asian migration be restricted, provoked accusations from Tivi Tuan San of discrimination and 'terror and dismay' in the Viet community.49 The paper saw in it a move back to 'the frightening days of the White Australia policy'. On such matters Italo-Australians could make common cause with the later Asian arrivals and spell out some of the racist implications: From hostility towards Asians, to those towards southern Europeans and then towards all non-British is a short step, the automatic consequence. The nation is born and rests on minorities [this is the opposite of Australian policy up to the time of Menzies]; minorities of English jailbirds, Irish rebels, of migrants of every ethnic stock; of political refugees; of individuals and
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groups turned to finding a place in a new social context without giving up their own distinctive characters; minorities which in the mass migration of the post-Second World War period have forged today's multicultural Australia ... an irreversible conquest. The drive to cultural homogeneity, racial isolation, the pretension that the nation can be brought back to a common British denominator, are regressive and reductionist processes, are the remains of colonial complexes. The massive presence of active ethnic minorities will be quite capable of reacting in the political and economic field to any manoeuvre by blind reaction. 50 The general migrant belief that the 'belonging to the national family' prerequisite for citizenship could quickly lead to, and always had led, to racism was perhaps somewhat less important (for this book) than the view that citizenship concerned procedures and participation in those procedures more than anything else. However, the determined support for the principle of dual nationality throughout the 1980s and 1990s by both 'left' and 'right' newspapers made clear their desire to sever nationality from citizenship requirements. They even argued for this against their countries of origin. 51 // Globo was scathing when the Italian government agreed to the principle of dual nationality but denied the exercise of citizenship rights where they were already exercised in the 'host country'. Its editorial exploded: 'What is citizenship ... if not the enjoyment of political rights?'. 52 La Fiamma also insisted on the active political notion of the citizen, proclaiming in answer to a letter from a reader who asked about the difference between 'the rights of Australian citizens and those of foreigners', that: You would do well to apply for naturalisation as soon as possible ... Only Australian citizens have the right to vote, without which the migrant represents nothing but a statistical unit lacking dynamic force, that power, that marvellous and amazing right of the citizen which consists in intervention in the fundamental actions of the life of the country ... This is the meaning of democracy; this is the supreme right of citizenship in free countries, this is the goal to which every migrant who has chosen Australia as his place of residence should aspire. There are also practical advantages attached to the acquisition of citizenship and one of those is the right to an old-age pension. But Italians should understand that the important thing is to be able to take an effective part in the life of this country.53 The emphasis on the primacy of the active right of the citizen - the vote - is striking. It is the theme which is distinctive in the Italian and Greek language press here. Both the papers cited are conservative, even lean to the 'right'. But they share a Rousseauian emphasis with papers of the 'left', like NuovoPaese, the newspaper of FILEF established by Ignazio Salemi. Nuovo Paese expressed all the attitudes cited above, and added
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that Australian resistance to such matters as multiculturalism and dual citizenship was evidence of immature political thinking here, summed up as 'soveranophobia'. 54 Given the nationalist positions of Hawke and Keating described above, there were two possible responses to such views. First, that by 1995 such calls for active citizenship have been incorporated into ALP policy in the practice of, in fact, 'working together'. There is, doubtless, some justification for such a response. In an article on the transformation of Werribee, a new suburb of Melbourne, the shift among 'old' Australians from racism to a recognition that there were shared problems to be resolved with newcomers, did take place: 'we had a common interest... we were all upset if the reservoir ran dry'. The article's author noted that a collective consensus was created around such issues ('Werribee wouldn't be Werribee if it wasn't for the Italians and Macedonians'). This gave new meaning to the view expressed by Chief Justice Latham in Koon WingLau v. Calwell:55 'No person simply by his own can make himself a member of the community, if the community refuses to have him as its member'. It can be inferred that such cooperation would push the ambiguous statements of Paul Keating about 'belonging' in a fruitful direction by emphasising not the aspect of a single collective memory and a monocultural past, but a forward-looking view of 'forging a future together' and a sense of 'belonging'. But the strength of that inference will depend on how far the migrant voice is allowed to call the tune in the future. In 1995 there was a real drive in the other direction, as these papers were aware.56 Certainly, it is possible to point to the endorsement of active citizenship by the DIEA of the following sort: Through the right that it confers, citizenship allows full participation in every aspect of Australian society. This is arguably the most practical and concrete value of Australian citizenship for members of the community as a whole. In some ways citizenship can be said to fully empower people because it is only those with the right to vote who can fully exert their influence on Australian institutions and values. Those who are disenfranchised by their lack of Australian citizenship can freely make their views known but it can be argued that they cannot be fully effective ... only citizens can be appointed to public office and only citizens can stand for Parliament (except those dual citizens, subject to the principles set out in the Cleary case by the High Court). Similarly, only citizens can contribute to the implementation of the legal system by serving on juries.57 If this is a far cry from Arthur Calwell's understanding of citizenship as conferring 'privileges and benefits', and much closer to the Rousseauian view than, say, to that of Marshall, it is, nevertheless, only
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part of an argument. Against the other view - that an active citizen requires minimal economic, social and educational rights - the ALP can have no response. Active citizenship appears as an alibi for not addressing other matters which the migrant voice highlights. The call for active citizenship by the ALP and the state since 1988 is accompanied by a refusal to pay any more for many of the economic, social and educational rights without which there can be no active citizen. Recent budget cuts, especially in the field of language training, have been savage. Italian, Greek and Viet migrants are well aware of the implications. On arrival they have always occupied the worst jobs, are the most unemployed and have had the least resources directed to them. It is not surprising that their primary concern has always been with economic and social security. One consequence was the reinforcement of familial, religious and other support groups. They have always been very sensitive about the quick slide from their objective economic and socially inferior status into racist stereotyping, and how it has been used to reinforce the Anglo-Celt ideal here. If we take the Vietnamese community as an example of this generalisation about their economic and social condition, we see that in 1994, 31.7 per cent of Vietnamese were unemployed, by far the highest proportion of all ethnic communities. 58 A common motive among them for naturalisation has been the oft-mooted threat to reduce social service benefits to non-citizens, usually coming from the Coalition spokesmen, but not always. Another is the desire to sponsor the immigration of family members as a form of social support. 59 Citizenship thus has the consequence of fostering and preserving the separate culture. This is sometimes seen as a reminder to Australia that it has an Asian destiny and should not see itself as the 'little Europe of the south'. When put in such terms, the relationship is different from the utilitarian view of the ALP that we will build a bridgehead into Asia using local linguistic and business skills but maintaining our 'national' identity. Vietnamese in Australia are certainly also interested in fostering trade with Vietnam but, conscious of the experience of their predecessors, state: I would like to relate the experience of the Italian community which now has a very good standing within the Australian community ... Today the second generation of Italians have good education, their unemployment rate is lower compared with the Australian community in general. Moreover due to good family upbringing and following traditional teaching, the Italian community has a very low rate for single mothers. Wog is no longer a shameful name ... The children are the future and we must work to ensure that they receive all the assistance to get through their school life. Many students are still facing discrimination at school and this could have a negative impact psychologically on these children of the future ... 60
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These demands for economic, social and educational rights recognise that such rights are merely the basis for human happiness in the private realm. But once the economic and social discrimination against the Vietnamese is reduced ('We still have to be twice as good as others to be recognised'), there will be a new voice of a different timbre coming into the Australian debate about what we should 'do' politically. The 'being' is already recognised in multiculturalism. All the past will not be left behind, but it is clear that a new collective memory will be added to that of the Anglo-Celts and all the other European memories. This may well refocus citizenship away from the active to the realm of social obligation from which the active is not separate. Viet spokespeople are aware of the clash between their cultural traditions and those experienced by the Westerner: We have to differentiate between cultural practices and traditions which are adaptable and acceptable in the Australian society and our own traditions and practices ... We have to be willing to discard the traditions which are no longer beneficial to our welfare ... Some traditions put emphasis on the improvement of the group over individual needs, and a belief in fatalism and life suffering do not prepare many for the Australian culture of self assertion, individual determinism ... The willingness to suffer in silence and ignore the daily difficulties may not assist a person in living and working in Australia.61 This all adds up to the need for a continuing, fluid debate about citizenship. Ethnic Spokesmen We can see from the few migrant voices who were elevated to positions of power in and after the Whitlam period some of the ways in which they added to the debate about citizenship, albeit in a restricted fashion. As we have seen, the demand of a man like Paolo Totaro was for mechanisms and procedures for greater participation and self-determination by migrants. Such a demand resulted in the establishment of a great number of consultative bodies in the 1970s but they were short-lived in ensuring input 'from below' once the accountability principle was introduced for budgetary reasons in the 1980s. Accountability in Australia has always meant accountability from those below to those above - the celebrated administrative model which Bland condemned as the source of lack of democracy in Australia. One of the Whitlam 'consultative' bodies was the Trade Practices Commission (TPC). So, the trajectory of the ideas about, or relevant to, the citizenship of Whitlam's Trade Practices Commissioner, George Venturini, is interesting, especially when compared with those of Andrew Theophanous, ALP
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spokesman on Ethnic Affairs and Equity and Access in the Keating governments of the 1990s. Venturini was sacked more rapidly than were Lionel Murphy and Gough Whitlam for the views he expressed. He gave his account of the TPC under Murphy in Malpractice, published by Non Mollare. 'Non Mollare' was the slogan of the early liberal-socialists of Italy and indicated not only Venturini's personal antecedents but his attachments. He represented the vanguard of the ideas of Bobbio, Piero Calamandrei and other leaders of that movement twenty years before their views on citizenship became the state of the art and the rage of Australian intellectuals. As a lawyer disabused of any belief in the common law doctrine of precedent which caused 'atrophy of the mind', and of the belief that democracy existed in Australia in the 1970s, Venturini was determined to show how the Australian bureaucracy served the rich at the expense of the rest of the community. At the frontispiece to his book he cited these words of Brandeis: Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good, or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for the law; it invites every man to become a law unto himself; it invites anarchy. Venturini believed that much could be learnt from the American jurisprudence about trade practices with its regard for the social and political values of the community. Indeed, in a complacent Australia, unaware of the threat of anarchic big business, this was doubly needed. Who can gainsay him after so many of the ALP government's big business friends and leaders of the 1970s and 1980s have ended in jail in the 1990s? This dim view of the rule of law in Australia was coupled with an even more bleak view of politics. Venturini quoted the Australian Financial Review of 7 July 1969 approvingly: Any Australian who looks objectively at the present political climate in this country must incline to the view that it is less liberal than that of any other Anglo-Saxon democracy in the world. Even the protest is illiberal in character ... Our courts and judges are narrowly legalistic or even repressionist: there is no hint of the generous and far-sighted concern with individual rights which so marked the Warren Court's term in the US. Nor is there any reflection of the ferment of intellectual questioning and intense concern for freedom which marks the current British legal scene.
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Perhaps Australians are too smug about their increasingly limited civil rights; perhaps they are too ignorant about the endless struggle which other peoples fight to prevent the encroachment of authoritarianism ... At all events, they would not be the first nation in the world to find democracy submerged beneath the sheer weight of affluent apathy or splintered by the adolescentrivalriesof hysterical academics ... Any nation can get along without a truly liberal government - but the only nation which can survive indefinitely without a strong liberal conscience is an outright dictatorship.62
Venturini's strong advocacy of liberal-socialist standards for citizenship and insistence on the observance of international legal standards, and even higher ethical norms, ensured his disfavour even in a government apparently committed to views like his own. It is possible that the way he linked the problems he saw with those of the deeper labour collective memory - the cult of 'mateship' was also the object of criticism for the way it masked realities — gave offence. We note that the ethnic groups as a whole do not regard the notion as sacrosanct - their view preluded that of the women's movement by twenty years. He linked the 'second-rate', 'outmoded' and 'philistine' bureaucracy of the nation with Anglo-centrism, which he believed had triumphed again in the two elections after 1972.63 With brilliant percipience, he saw that the bureaucracy had started to speak 'newspeak' (Poshlost) in place of the 'old' speak, by using words which are giveaways of positions without ethics, like 'at this point in time'. For suggesting that the TPC was used to 'abuse the citizens', Venturini was relegated to the status of the citizen whence, more recently, he has given new expression to his views. He has made valuable statements about what standards of citizenship should exist here. The climate should be more propitious now that his earlier views about the TPC, and those of Murphy who hired him, have been overwhelmingly proved true and vindicated, both in fact and in law. But so far they cry in the wilderness. In his proposals for an Australian republic made in the fifth Lionel Murphy Memorial Lecture, delivered in 1991 at the Aboriginal Centre in Morwell, Venturini suggested a bill of rights. This would incorporate in the republic 'we want' the best liberal-socialist standards and the best international practice as embodied in various Conventions. As such, it demanded much more than the Westminster system, even if it were to be revamped, modernised and made more just. 'Because I am classed an "ethnic" I have no compunction in calling it the Axminster system. Under the Westminster system the people have never been the supreme source of power. I want us to cease to be subjects - and to become citizens.'64 Venturini noted that this could not be achieved under the existing Constitution which therefore had to be reformed. He proposed as a preamble the words: 'Australia is a democratic republic founded on
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labour. Sovereignty belongs to the people, who exercise it in the manner and within the limits laid down by the Constitution'. It would recognise and guarantee 'the inviolable rights of all human beings, both as individuals and as members of social groups in which their personality finds expression, and imposes the performance of unalterable duties of a political, economic and social nature'. All citizens would thus be 'endowed with equal social status and are equal before the law. The law is equal for all, without distinction as to sex, national origin, language, religion, political opinions and personal and social conditions'. 65 These proposals are like those in the Italian Constitution of 1947. They thus brought to the debate a collective memory which is now also part of Australia but almost completely ignored in official and academic circles. They also happen to be those found in international instruments which Australia has signed. Venturini wished these proposals to be understood in that fashion. Frequently such proposals as those of Venturini are rejected on the grounds that they may exist in principle elsewhere but do not in practice, while the converse is true of Australia. 66 In fact, as Venturini points out, the second proposition (the converse) is just not true, and this is increasingly recognised here especially by foreigners and Aborigines. The first proposition is also untrue. The figures for the observance of human rights show far higher practical performance in Europe than in Australia.67 Venturini warned in his lecture that the economic, social and educational rights which he insisted were needed to protect the weak, in particular, the Aborigines, were faced with an ominous future under the economic rationalism which decided state policy and the loss of the right to strike. 68 As we have indicated, Venturini's is a silenced migrant voice. Compared to him, Theophanous has managed to keep his views about citizenship half-heard, but only at a price. They are listened to with a little chuckle by those in the ALP who are concerned with social justice, but these people are much reduced in numbers in the last decade of the twentieth century. In 1993 Theophanous published his Understanding Social Justice - An Australian Perspective, and has since republished it. He hoped through it to stimulate debate on what had to be done socially to create the active citizen. Relying heavily on the work of John Rawls, Theophanous proposed a multicultural society citizenship which necessarily differs from that of the old nation-states of Europe which assumed homogeneous populations. Theophanous' main concern is how to square the need for a minimum of social justice with economic rationalist policies adopted by the ALP. His formulation is that a 'short-term budget deficit can be entirely
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justified in social justice terms provided it is used to sustain the minimum income and services and provided that it leads to economic recovery and growth in the medium term'.69 To gild what is a bitter pill, he recognises that a maximum consensus on the standards of social justice is needed. This is what makes him focus on citizenship. He argues that, by using Rawls' approach, we can proceed to develop the social democratic model of citizenship. According to this view, a person is a fully fledged citizen if he/she is committed to: 1 universal rights; special rights for underprivileged individuals; positive discrimination for underprivileged groups; 2 the duties involved in seeking a just structure that achieves the implementation of those rights; and 3 a set of civil and political rights to underpin those social rights. Theophanous thus links, as Venturini does, economic, social and political citizen rights. But despite a similar background, his view is much more moderate because of its basically 'social' view of citizenship. His use of the Anglo-Saxon notions of citizenship, which rely heavily on the concepts of the common law, also renders the critique less distinctive. He is certainly more acceptable to the leaders of the ALP than is Venturini and than he himself was when first elected on a strongly democratic socialist platform. Nevertheless, we need to note how both threaten traditional Australian progressive shibboleths. These are: 1 that it is work which gives entitlement to justice not the converse; 2 that the individual makes the collective and not the contrary; and 3 that social welfare is therefore not a right. Social, Economic and Educational Rights
It is useful to consider these issues here. Since migrants have always been the most deprived of such rights (with the exception of the Aborigines), their views on such matters are crucial to understanding them. To silence their voice is to silence the voice from those most 'below' about what economic and social minima are needed for an 'active citizen'. They certainly do not agree about what is 'essential'. It is useful to listen to an Aboriginal voice about the shortcomings in such areas, as on such matters similar deprivation was felt by migrants. The voice is that of Vince Lingiari when the Wave Hill station was occupied in 1966: 'We address you as fellow citizens, but our citizenship has not brought us the opportunity to live a decent life ... for 85 years our people have accepted these conditions, and worse, but on August 22, 1966, the Gurindji tribe demanded to cease to live like dogs'.70
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After the Harvester decision of 1907, what was a fair wage for Australians was decided by reference to men who were workers and heads of families. The premise of that judgment was the existence of a system of tariffs which were coupled with the introduction of the White Australia policy. So fairness here was based on the exclusion of outsiders, above all Asians. Apart from old age pensions, the welfare state was only superimposed on this system with difficulty, and only partially during and after the Second World War in the face of constitutional impediment and conservative resistance. Those people who did not work were ill-served with economic, social and educational rights.71 Women, in particular, were disfavoured by the system.72 Apart from the inbuilt discrimination which offended against several Conventions Australia had signed, the work-based notion of a 'fair wage' could not take into account cultural or ethnic differences and could not come to terms with particular diverse needs. Only when Whitlam introduced anti-discrimination legislation, and attempted to even rights for women, did that start to change. In 1985 the Equity and Access program of the ALP started to take account of such variations after intense migrant pressure. A large number of services and bodies were set up to take into account their different levels of deprivation in economic, social and educational realms.73 Among these was the Jobtrain bridging scheme and relaxation of rules concerning overseas training to allow easier and fairer employment practices. After the Migrant Access service, the most notable of the others were those in community education and education in languages other than English. These innovations were prompted partly by the realisation by the state that it could use such skills and that poor communication skills were costing the nation greatly in lost productivity.74 However, the economic rationalism and new nationalism of the ALP governments in 1983-95 were contradictory to these innovations. Above all, the migrant demand for more participation, or more democracy in more places and therefore control over what was given to them, could not be met. It was seen by influential sections of the labour movement as too 'separatist' and as giving too much privilege to the newcomers. The shortcomings which resulted were targeted by the ethnic media. Their criticism existed at several levels which were unconsciously and consciously interrelated. Migrants desperate for work were very conscious of the importance of language and English language training. Conversely, they knew how much discrimination was based on not knowing English. So when the points system for immigration was made partly dependent on good knowledge of English, they recognised immediately that it discriminated against Mediterraneans and Vietnamese.75 They also engaged in determined defences of ethnic radio and television
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when it was proposed that they be cut back or merged with the ABC.76 When the proposals were made for the cost-cutting exercise of amalgamating SBS with the ABC there were widespread protests in migrant communities. Indeed, any suggestion that language services be reduced provoked hostility even when it originated within the community. 77 Migrants were particularly touchy about the suggestion that good English was needed to be a good citizen. All attempts to cut back such apparently non-essential services are objects of criticism. This is even more so when what is involved are essential social services, on which these communities rely more than most. Certainly, they have always relied on familial and community support even for old age accommodation, like the Villa Maria and Mekong centres in Victoria. But as such communities age and lose what language skills they have acquired, more not less state support is required. Better rules than those provided by the existing Residents' Rights and Responsibilities Charter are required. Their health needs increase and the cutbacks in skilled interpreters and education against racial discrimination in health grow.78 As Theophanous' book suggested, these demands place migrants in conflict with the state's economic rationalism and its continual cuts to the budget where it most affects migrants. Debate continues about what standards of economic, social and educational rights should be the minimum. The much reduced Social Justice statement of the government has focused mainly on indigenous peoples. It is fiercely contested and until resolved, the call by Brian Howe, the Deputy Prime Minister in the Labor government, for a charter of such rights will be taken no further. 79 Where economic and social matters are concerned the migrant voice thus brings Australia face-to-face with its options for social justice. In 1995 Australia's refusal to listen left it embedded in the closures forced by its economistic approach. ALP choices in favour of a 'productivity' approach to measure all problems was double-edged. It may have favoured Asian communities, say in language support, but not for human reasons, and would have disfavoured old people from small ethnic communities. This migrant concern with cut-backs in language services highlights the importance of identifying minimal rights acceptable to citizens in matters like education, social welfare, and access to economic resources and well-being. In considering the implications of this concern it is worthwhile first to recall the carefully established 'best' definition of citizenship in a country like Australia, which was attempted in the Introduction and chapter 1 of this book. It was pointed out there that citizenship is concerned about what a person does. It is the right to participate in a bundle of legal-political
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procedures, and is therefore a legal-folitical and not a social or economic notion. The essential procedure is the right to vote and thus make the laws under which that voter lives. But, as was also made clear, that right is meaningless if the voter is so preoccupied with economic or social survival that he or she has no real possibility of fulfilling a neo-Kantian role as a thinking, debating, choosing voter. So certain minimal economic, social and educational rights have to be provided to guarantee that citizen presence. What should these minimal standards be? How can they be identified in a society based on difference? Clearly, they cannot be identified if those who 'know where the shoe pinches' - like Viet migrants to Australia - are silenced, say, by admonitions to speak English before they speak 'polities'. Thus democracy is again primary. Once that is admitted, what more can be said about the level of such economic, social and political rights? It is equally clear that the answer to what a citizen should get of any good in order to do depends on the context. It cannot be given once and for all; nor can it presume equality as some people may need more than others to participate, and that means that some will get less. Moreover, any notion of an attempt to attain a strict equality would mean that abolition of difference, by a totalitarian state, since citizen rights are based on difference. 80 Any imposition of strict equality is contradictory with the notion of liberal-democracy. Nevertheless, unless some measure for minima is established the whole issue of citizen rights becomes an exercise in rhetoric. 81 In Australia, there has been developed the concept of economic and social benchmarks. These do not state, for example, that the right to shelter demands for one standard of housing - say, a triple-fronted brick veneer for every family in the world - or that a wage cannot be specified at more than a minimum. 82 A standard which stated that citizens should be guaranteed this or that type of housing by housing laws, irrespective of context, would be fatuous. The concrete garages, provided by a well-meaning state, in which some indigenous people live are much inferior to the grass huts they once lived in, and much less appropriate. Indeed, as they are damp and lack ventilation they lead to more ill-health. Moreover, they cannot be rebuilt the day after a hurricane. Thus, context is crucial in identifying what minima are required economically, socially and educationally to function as citizens in this or that society. It must be remembered that the benchmark for measuring these minima is always their capacity to enable individuals to function as citizens and no more. It is simply wrong that a multimillionaire media tycoon is more powerful at the ballot box than the 'poorest he'. Indeed, the point of procedural democracy is that it enables thousands of poor voices to drown out the few rich voices. 83
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Yet benchmarks can be specified more precisely than generalisations that all citizens should have the right to certain economic, social and educational minima. In an advanced society like Australia, with its multiethnic population, the character of the society is known at any time. This context demands a high level of, for example, education and specifically bilingual competence for anyone to function. Such realities are recognised first and in their specificity by those affected most, like NESB populations. Thus, their voice should be privileged in any debate on such matters. Why does an English speaker know more about what is required in foreign language training to get by in the Australian marketplace? On the other hand, all ethnic groups also share minimal requirements as they cope with the complexities of an advanced society in a global market. To identify what these might be for Australia the myriad Conventions this country has signed are a guide. They identify what standards should apply here. The UN International Covenant on Economic, Social and Cultural rights to which Australia is a signatory lists rights to: an adequate standard of living; decent housing; education; the highest possible standard of physical and mental health; work; just and favourable conditions of work and the right to strike; formation of trade unions; social security; the widest possible assistance to the family; take part in cultural life and the benefits of scientific progress.84 Again, taking education as our example, we see that when it becomes an issue of a right to education, courts usually establish minimal For Australia, at least eleven Conventions have been signed which give precise standards for what is a necessary level of education to be an adequate citizen. Against such standards we can measure local policy and practice. For example, Salvaris makes the following points on the basis of such standards: 1 Education is a right which must be available to all. 2 Primary education must be free and compulsory. Comment: any fee or charge breaches this provision. 3 Secondary and higher education must be equally available to all on grounds of ability and merit and must be made progressively free. Comment: introduction of any new fee (that is, tertiary fees, school levies) breaches this provision. 4 No differentiation in quality of education allowed on grounds of socio-economic class or income of student. Comment: introduction of fees breaches this provision. 5 No differential funding for schools according to location except more funding for those with greater needs. Comment: government policy which discriminates in favour of locations where parents can raise more money may breach this provision. 6 Educational curricula should be primarily directed to the full
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development of the human personality, of the individual's mental and physical abilities, respect for human rights and peace, and active citizenship. Comment: possible breaches in Australia may include: a) failure to teach peace and human rights; b) failure to teach civics or social education; c) excessive emphasis on vocational education, marginalisation of outdoor and physical education. Women must have equal career and promotion opportunities in education. Comment: if over 50 per cent of teachers are women and (say) only 10 per cent are principals, does this breach this provision? Children must have access to diverse information in the media, and such as to promote moral and mental well-being. Comment: do media monopolies offend against this? Does pornography and violence? Does low-grade children's television? Material conditions of teachers shall be continuously improved; stability of employment and security of tenure are essential; teachers shall be protected against arbitrary action affecting their profession. Comment: do forced 'redundancy packages' offend this? Teachers declared in excess? Sudden school closures? Teacher organisations must be closely involved in development of education policy. Comment: the Kennett government and the Institute of Public Affairs call this 'capture'of policy by teacher unions. Class sizes should be such as to give pupils individual attention, and national standards should be set to promote this. Comment: Australia is increasing class sizes, and developing new benchmarks based on the lowest spending States. Teachers should enjoy academic freedom: they have the right to make judgments about best conditions and teaching methods for their pupils, etc., and should be given the 'essential' role in these matters. Comment: the pattern in Victoria is one of gradual centralisation of these decisions and withdrawal of consultation.
Indeed, Salvaris points out that a recent International Labour Organisation conference gave Chile and Victoria the worst rating for breaches of the industrial rights of teachers.86 It is clear that by using government ratified standards of such 'best practice', it becomes possible to criticise the privatisation of education quite concretely, not only because of the generalisation that free education is a right, but also because in no other similar signatory country does the same level of privatisation exist except in Spain, recently under a clerical-Fascist regime. General, economic rationalist, postmodern, managerial policies which are used to justify such privatisation here are immediately subject to question when it is generally realised that other countries, when faced
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with similar problems to those of Australia and committed to similar policies, have not taken the same action as Australian governments, or not in so draconian a fashion. When they have, as with the policies of the conservative French state led by Jacques Chirac, the citizenry has made clear in active fashion that it has a different view of what is required for the collective good and has stopped those policies. In a democracy, elitist experts are always subject to democratic control 'from below'. If this alone adds up to the foolhardiness of ignoring the voices of those who come from such societies and can make comparative judgments, it also emphasises that even economic, social and educational standards depend in the last analysis on politically present citizens. Deep Culture and Racism L. Jayasuriya, writing in the Current Affairs Bulletin in 1991, has pointed out that in this new economic rationalist context, multiculturalism, while an immense advance on the White Australia policy, has led to the problem of an instrumental division of ethnicity: a struggle for ever scarcer resources by the various organisations of the multicultural society. This poses the question how far that struggle should be tolerated since the state always has hegemonic goals. In turn, that has provoked the emergence of a 'new' racism. Central to the concept of the 'new' racism is the concept of the nation rather than that of culture; racism and nationalism are inextricably interwoven in this new language. The use of the concept nation as marking the boundaries of group membership ... is exemplified in the recently expressed conservative ideology of One Australia ... [As we showed earlier, it is not so recent] Nationalism is no longer a matter of racial superiority, but of cultural uniqueness ... Jayasuriya points out that a respect for the 'majority' identity is the key to this new racism in which, for example, Asians, are seen as working against Australian values of egalitarianism because they work too hard and seek rapid social improvement in their lot. Key terms are the need for 'social cohesion' and in particular the 'imagined community', or what we have identified as the single 'collective memory'. If that community is no longer British but Australian, it still functions to exclude. For Jayasuriya the challenge of the 1990s has thus become: 'to accommodate the genuine political aspirations of these groups in the public domain through appropriate political and institutional changes such as the legislative safeguard of minority rights'. The National Agenda and the Jupp review of migrant and multicultural programs and services thus become
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no longer relevant as guides to good policy. In their place a bill of rights which includes benchmarks for economic, social and educational rights becomes essential. Most importantly, a citizenship based on participation is required. Jayasuriya cites Dahrendorf s words that: 'citizenship is not merely about where people stand, nor about what they do. It is about participating'. In the place of the cultural definition of the nation, he would place a 'political' definition. As Jayasuriya points out, this emphasises the distinction between a nation founded on a common cultural heritage and language, and a nation as a community of politically aware citizens equal before the law irrespective of their social and economic status, ethnic origin or religious beliefs. These warnings and proposals are paralleled by other expert 'ethnic' voices - Vasta and Castles on the 'left',.Ten the centrist and Kukathas on the 'right' - all of whom fear the new racism and often return to a neo-Kantian notion of the public space. 87 Vasta makes clear that, despite the formal end of the White Australia policy, racism still permeates the state machinery and is rationalised as control and management. The managerial model of the ALP itself is shown to be contradictory with the idea of participation. The idea of participation is seen by the state as a threat as it subtracts power from the top and gives it to the base and because it establishes linkages between local communities and other nation-state minorities. This is clearest where dual citizenship is concerned but it also consists of forming alliances with people who struggle for freedom in other countries. Typical are the East Timorese. Once such links are made the record of Australia with regard to human rights in the region comes under the spotlight. This record is highly ambiguous because of the state's desire to promote trade relations with countries which have appalling human rights records, as have most of the countries in the Association of South East Asian Nations (ASEAN) and the Asia-Pacific Economic Cooperation forum. 88 The Australian state is quite aware how far its policies conflict with best international practice. It still states that: 'One conclusion we ... draw from history and experience is that democracy, a culture of respect for human rights, and the achievement of social justice will only be sustained if they are developed willingly, impelled by popular support and not imposed coercively'.89 But this rings false where no conditional aid is imposed and where local populations cannot express their 'popular opinions', as is the case in China, Indonesia, Thailand, Burma, Singapore, Malaysia, Korea, Fiji, Papua New Guinea and Vietnam. All local Asian-Pacific populations make this point to the state here and are ignored. This can only be seen as 'racist' by both migrants and their cousins in other cultures. In sum, the ethnic voice tends to reach the conclusion that liberalsocialism, as described in the first chapter of this book, is the solution to the contradictions which now exist. It is supported by other writers
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who feel that the state should become more involved in social matters than it has on the grounds that the employment strategy of economic rationalism has proved a failure. 90 On the other hand, so far such pleas have not been acted on as the state continues to adhere to the 'new nationalism' and thus fosters the new racism. Its resistance highlights what will have to be done to ensure participation and avoid elitist, non-democratic solutions in Australia. These we deal with in the Conclusion to this book. Here we merely point out that the culturalist view of the nation is still advanced by commentators on migration, nearly always from an Anglo-Celtic background. For them the family notion of the community is still central. 91
CHAPTER 6
Aborigines and Citizenship: Discourses of Exclusion
Let us never forget that Australia's real test as far as the rest of the world, and particularly our region, is concerned is the role we create for our own Aborigines. In this sense, and it is a very real sense, the Aborigines are our true link with our region. More than any foreign aid program, more than any international obligation which we meet or forfeit, more than any part we may play in any treaty, agreement or alliance, Australia's treatment of her Aboriginal people will be the thing upon which the rest of the world will judge Australia and Australians ... not just now, but in the greater perspective of history ... the Aborigines are a responsibility we cannot escape, cannot share, cannot shuffle off; the world will not let us forget that.
Gough Whitlam, Leader of the Opposition, 1971
The Aborigine became a displaced person in his own country. His apathy is his recognition of his stateless status. It cloaks ... the bitter resentment of displaced people the world over.
Mavis Thorpe Clark, Pastor Doug
Make us neighbours, not fringe dwellers: Make us mates, not poor relations. Citizens, not serfs on stations.
Oodjaroo Noonuccal (Kath Walker), 'The Aboriginal Charter of Rights', My People, (Jacaranda, Brisbane), p. 33
The rules of nationality and citizenship in Australia have always been more discriminatory against Aborigines than against any other part of the population. The attempts of the Aboriginal people to meet what was required of them to become citizens by an Anglo-Celtic nation were doomed to failure because those requirements were impossible to meet. 188
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They therefore went beyond the smug nation-state to an international society more likely to hear their justified demands for citizenship, since its standards were so much higher than the Anglo-Celtic society. Gradually, above all in a series of cases, they established piecemeal the rights to have those standards here. So they changed the possibilities for all Australian citizens who therefore could use principles enunciated in, say, Koowarta v. Bjelke-Petersen, to force observance of environmental rights in the Dams case. The Aborigines thus contributed to Australian citizenship by showing how inadequate any notion of citizenship based on a single national identity must be today and in a future global world. The ruling party and state still resist. The Colonial Period
The whites had created a strangely truncated version of British citizenship here which made it difficult for migrants of other ethnicities to want to become Australian citizens. Consider the recent accounts of Irish who found swearing the oath to the Queen impossible.1 The Aboriginal inhabitants of this continent were in an even worse position, despite the fact that they should have benefited automatically from the ius soli. This automatically made all people born on Australian soil British citizens. The invasion of Australia was justified even before 1788 by the lie of terra nullius. Even in 1788 many whites recognised it to be a lie.2 It caused immense complications for the Aboriginal people, whose citizenship should have been automatic according to the British rules of citizenship. If, as the terra nullius doctrine claimed, Australia was uninhabited or desert and belonged to no one in 1788, then the Aborigines simply had to vanish from state calculations. This phenomenon of invisibility (a discourse which needs exploring) is common to many racist ideologies.3 To make the Aboriginal people subject to British laws rather than to their own (given their supposed non-existence), required treating them as if they were migrants coming on to British soil.4 From the outset then, in their own country they were half-equated by the Australian state with 'aliens' coming on to British soil. They thus shared many problems with other migrants of non-British origin where the rules of inclusion and exclusion from the nation were concerned. Like these other migrants, Aborigines had to prove that they had turned their back on their own culture, joined the Anglo-Celt national family; and then the state decided whether they had crossed the divide culturally. Only then were Aborigines given citizen rights. Their exclusion from citizenship started as a practice in the first half of the nineteenth century when they were excluded from the protection of the law, because it was argued that
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they did not believe in the one white God and therefore could not swear an oath. It was a blatant denial of the fundamental principle of the Magna Carta, s. 39, the starting point for all the common law rights of a citizen. Only once they had overcome such formal legal problems, were the Aborigines regarded as having the citizen rights which others born on the national soil enjoyed. Legally, as subjects, they should have enjoyed those rights; politically, they remained excluded. Legally, as the whites obtained the vote, so did the Aborigines of the colonies except for Western Australia and Queensland.5 In Western Australia and Queensland, electoral Acts going back to 1885 excluded Aborigines from the vote (Electoral Act 1885, 47 Vic No. 13; Electoral Act 1907, No. 27 of 1907). In fact, the colonial parliaments passed legislation which in various ways excluded them from citizen rights. Their situation did not improve with the move to Federation. The Convention debates of the 1890s show scant concern for the colonial denial of their rights. Indeed, the rapid decision to exclude the Aborigines from the count of the population of the Commonwealth Constitution (s. 127) meant their effective invisibility in the new Commonwealth. Since the very possibility of an Australian citizenship started with the Commonwealth this boded ill for any hopes of citizenship rights for the Aborigines. The existing rules of the new States remained for Aborigines. As we will see, even within areas of Commonwealth jurisdiction Aborigines were effectively denied the vote. This was a blatant denial of the basic right of active citizenship. The Franchise Act (1902): The Right to Vote
The right to vote has always been central to the theory of democratic citizenship. It has usually been seen as a procedure to resolve differences which cannot be overcome consensually. The goal is to secure outcomes which are acceptable to all without coming to blows. As one famous democrat put it: it seeks to count heads, not cut them off. So an essential preliminary to the vote is the discussion or debate in which all are equal and put their point of view according to their own values to secure outcomes understood as attaining some agreed good or other. In a representative democracy the vote also secures power from below in order to guarantee benefits for the collectivity. To exclude the Aborigines from the vote, either in theory or practice, was effectively to render them non-citizens, and unfree. This followed from the central definition of freedom in a liberal democracy, that it is the right to make laws for oneself. But to exclude them from the collectivity's debate was even more basic. Until the war of extermination against the Aborigines effectively
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ended - and that was a war still being waged into the twentieth century - any debate with the whites and their state about whether the Aborigines should be granted the vote had no substantial meaning. Precious little took place in the nineteenth century except their extermination in a brutal war involving what today is called 'ethnic cleansing'. But in 1859 there was a petition to the Victorian State for land to cultivate, and in the 1880s and 1890s those on the reserve at Coranderrk used strikes, petitions and deputations to secure some concessions from the state. By the twentieth century the situation was as described by A. Markus: While acts of physical violence against Aborigines became less frequent in the more settled parts of the country, a new feature of their relationship with Anglo-Australians was the imposition of legislation with potential to control practically all aspects of their lives; their freedom of movement and association; choice of employment; right to dispose of assets as desired, including wages, and to marry and raise families. While lack of bureaucratic and financial resources meant that legislative controls were not fully utilised, nearly all Aborigines were deprived of basic political rights; their personal freedoms were limited, and they were commonly discriminated against by employers. Many lived in fear of government officials who had the power, most notably exercised in Queensland, to compel residence on reserves, and in most States to remove children by force.6
We can trace the emergence of Aboriginal political organisations expressly demanding the citizen rights which other Australians had as a reply to that discrimination. In 1919 returned Aboriginal servicemen petitioned for 'civic rights'. In 1925 the Australian Aboriginal Progressive Association was formed. It asked for 'full citizenship' rights for Aborigines, as well as for land as compensation for wrong done by dispossession. In Victoria in 1929 the James family, of mixed Mauritian and Aboriginal origin, started to press for Aboriginal representation in the Commonwealth Parliament. In 1926 Western Australian Aborigines formed a union to obtain the same rights as whites. One participant recalled the objectives in these words: 'to get a vote in the country also one law for us all. That is the same law that governs the whites also, justice and fair play'.7 Such demands for the rights of citizens increased in the 1930s. Among the leading personalities were William Cooper in Victoria, Jack Ferguson and Pearl Gibbs in New South Wales. In both States Aborigines had been formally recognised as 'citizens' by the 1930s. They all made clear their desire to be admitted to the debate about what was the collective good and who should have the right to vote. But they emphasised how difficult that was. Shadrach James drew attention to the real conditions making the participation difficult: the cycle of poverty and the impossibility of
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getting out of it; the lack of education; and the denial of 'human dignity' to the Aborigines. Cooper added to this the lack of legal status; the failure to observe the rule of equal treatment. When the Aborigines League was formed in 1936 he therefore called for full economic and social rights, as well as the education necessary to act politically.8 Ferguson, in New South Wales, also described the terrible and almost inescapable conditions in which Aborigines lived: the housing of bags and tin put up by the people themselves, sometimes to replace demolished weatherboard houses; the new housing of concrete floors and corrugated iron in hot climates; bad food and worse water; the power of the manager's expulsion orders, forty segregated schools; twenty-three stations; and many of them mismanaged; the people totally discouraged and beset by hunger and constant epidemics.
It would be better for the authorities to turn a machine gun on us, he said bitterly.9 The Aborigines' pamphlet, The Aborigines Claim Citizenship Rights, made clear the sapping of the will which resulted from such conditions and, unless they were removed, how meaningless was the vote.10 Yet these campaigns of the 1930s nearly always ended in the white state's refusal to enter into a dialogue or debate with the Aborigines who petitioned it. The Commonwealth simply stated that it was beyond its constitutional power to do so. This left all in the hands of the State governments who refused to do anything for reasons which are at the core of this chapter. The Aboriginal voice - often expressed in the request for parliamentary representation in Canberra - was thus not heard although it is the basic preliminary to the vote. It was usually rebuffed for legal reasons, as in the case of a petition of August 1937 to the British monarch.11 Small wonder that the Aboriginal citizen organisations declared a Day of Mourning for Australia Day in 1938. However, their work had not been without some influence among the whites. Usually, the whites sought to remedy the economic and social disadvantage of Aboriginal people. An example of such men was Arthur Burdeu, who set up an organisation providing social services. Burdeu had been made president of the Aborigines League in recognition of his support. In his support for the Day of Mourning he stated: 'We will hope that it will direct the attention of the people of Australia to the desire of Aborigines for full citizenship'.12 The Communist Party, and Nationalists like P. R. Stephensen and the Jindyworobak movement, also took up their cause. An influential group of anthropologists received a better hearing from the New South Wales government. Led by Professor A. P. Elkin of
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the University of Sydney, in somewhat contradictory fashion they encouraged a number of inquiries and commissions into the administration of Aboriginal affairs during the Second World War and after. These resulted in significant shifts in policy. Together, they effectively ended the state policy known as 'smoothing the pillow' of the dying race; and that of the 'child race' in need of 'protection', both of which had excluded the Aborigines from citizenship rights. In its place there emerged an acceptance of the notion that the Aborigines could be assimilated and therefore become full citizens sooner or later. A. P. Elkin's Citizenship for Aborigines: A National Aboriginal Policy was published in 1944. He believed that changes in the administration of Aboriginal affairs in the 1930s showed a less pessimistic attitude about the future of the Aboriginal people and, despite regular reports of atrocities still perpetrated against them in 'remote areas', argued for justice in economic, social and legal realms on the grounds that: 'Aborigines are rational beings, just as capable of logical thought as ourselves'. 13 But he considered it essential that they be trained out of their culture into that of white 'modernity'. Among the vehicles for this were the learning of English and democratic education through local self-government.14 Attaining citizenship after such prerequisites was not greatly different from the demands placed on non-British migrants to Australia in the postwar years. Undoubtedly, it contained great contradictions, which we discuss below. But, in the context of a past where it was assumed that Aborigines were doomed to extinction, or unable to become part of the greater society, it did mark an advance in their demands for citizenship. It was accompanied by a tendency for the Commonwealth to assume more responsibility for Aboriginal affairs and to attempt to coordinate policy with the States. Assimilation was especially stressed after 1937. Moreover, service in the Second World War, while not adequately acknowledged, was recognised by Elkin. Spokesmen for the Aboriginal community in the 1950s, like Doug Nichols and Harold Blair, had been on active service.15 Since the conservative understanding of citizenship at the time emphasised the 'defence of the nation' as its core value, it was difficult to deny Aboriginal ex-servicemen citizenship rights. 16 The Aboriginal condition had to be rethought in the Menzies era of 1949-64. Unfortunately, Doug Nichols' belief that Menzies was willing to help the Aboriginal cause, did not prove to be true. Menzies' lack of legislative initiative on Aboriginal matters left him open to accusations of racism. Nevertheless, his governments were obliged to consider the issue as a new generation of militants emerged to replace the moderate and often reformist movements of the earlier period. 17 In the late 1950s and early 1960s the movement for citizenship rights
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took on an anti-state position. This stressed the difference which was all-important for a distinctive Aboriginal voice to emerge. Without pushing the argument too far, the alliance between Aboriginal organisations and progressive whites, even the Communist Party, had meant a white notion of values had prevailed. Even the new militancy was tinged by union and strike methods learnt from white traditions of class struggle. This was so for the first strikes of the Murray Island fishermen in 1937 and those helped by Communists in Western Australia in 1945.18 Politically, the main theme was a demand that responsibility for Aborigines be transferred to the Commonwealth from the States, but many more demands for self-determination started to be heard. Without wishing to deny the seminal contribution of the New South Wales, Victorian and South Australian Aborigines to the citizenship movement, and their continuing role, what seems to have been happening in the Menzies era was a realisation that the moderation of the 1930s was only credible in those States because violence had become mainly structural there. In Western Australia, Queensland, and the Northern Territory, where Aborigines were still being murdered with relative impunity in the 1930s, such policies were difficult to accept.19 There was a gradual shift in focus to the latter States where the overwhelming majority of Aborigines lived, especially the so-called 'full-bloods'. Conditions there affected the debate. These conditions made clear that the Commonwealth was not the place of salvation it had been considered in Cooper's writings of the 1930s. The Commonwealth had jurisdiction in the Northern Territory. But under the 1918 Aboriginals Ordinance and the 1953 Welfare Ordinance and provisions of the electoral legislation, Aborigines there were effectively excluded from benefits of other citizens and from the vote. In fact, by simple administrative fiat, a 'full-blood' could simply be declared a 'ward' of state on many grounds and excluded from the rule of law which applied to others. Both visiting whites and Aboriginal leaders who, in the 1950s and 1960s started to visit the remote regions of the centre and north, were horrified by conditions there. When Nichols visited the area to support the artist, Namatjira, in his famous trial, he was deeply impressed by the fact that the Aborigines were treated as if they were not there. A telling story is related by Clem Christesen, the Meanjin editor. Christesen observed an injured Aboriginal woman waiting for a plane, all alone and unaided, 'put down the back with parcels'. She had apparently injured her hand 'while fighting' with nulla nullas. Later Christesen spoke about this with a station manager who said: 'Oh, I soon fix them ... If they come to me with smashed fingers, I just take the scissors and snip off the hanging bits. They don't do that kind of fighting on my station'. And yet, said Clem, this man was just an ordinary fellow - a quite
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likeable chap. They just seem to get this way about Aborigines after they have been in the outback for a while. Whether they're conforming to the pattern that has developed, whether they're afraid of showing more weakness or sensitivity than their neighbour, I don't know. But it's just as I said: after a time, they're unaware of the Aborigines as human beings, and don't expect them to have the feelings of human beings. It shocks and disturbs me.20
Contemporaneously with the last-ditch defence by Anglo-Celts of the notion that Australia and Australians were the best in the world, the Aboriginal citizenship movement went national. In 1958 the Federal Council fcr Aboriginal Advancement (FCAA) was set up with the following program: 1 equal rights for Aborigines with all other Australian citizens; 2 an adequate standard of living comprising health, housing, clothing and food like that of other Australians; 3 equal pay for equal work and industrial protection like that of other Australians; 4 free and compulsory education for detribalised Aborigines, and 5 the retention of all remaining reserves with native, communal or individual ownership.21 The last demand is particularly noteworthy in its challenge to white concepts and values, and to the very basis of the rule of law in Australia, which rested on the doctrine of terra nullius. But the immediate effect was a national campaign through the Federal Council of Aboriginal and Torres Strait Islanders, which grew from the FCAA, and the Northern Territory Council of Aboriginal Rights (1962), for legislation according citizenship rights to Aborigines in the Northern Territory. First, the right to vote was established in 1962. Then, in 1964 social welfare legislation was passed which gave 17 500 'full-bloods' full citizenship rights to own property, to manage their own wages, to control their children, to mix with non-Aborigines. This ended the legal possibility of excluding them from general equal rights by placing them in special categories in need of'protection'.22 We would like to emphasise that what was crucial in the struggle of the 1950s and 1960s was summed up in the title of H. Middleton's book But Now We Want the Land Back. The concession of the vote, although not made compulsory, was an immediate and significant breakthrough in the drive for citizenship, despite its formality. Indeed, it was precisely because it was a formality, which is meaningless for liberal democratic citizenship unless the other civil, economic and social rights are also in place, that in the 1960s the nature of the drive for Aboriginal citizenship
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could take a fruitful turn for all Australians. We recall that Aborigines had effectively been excluded from the vote because the right to vote was governed by State legislation. State legislation could also exclude some people - in this case the Aborigines - from that vote on the grounds of incapacity of some sort or another. The Commonwealth had accepted that Aborigines had become so assimilated that the Electoral Act (1918-53) should be amended to give them the vote. The protagonist of such views was Paul Hasluck, later GovernorGeneral, who had an intimate and sympathetic knowledge of the conditions of life imposed on them. He had stated in 1951 at a Native Welfare Conference that in the country of the 'fair go' where everything was opened to talents, many 'coloured people' had crossed the frontier to receive the benefits of civilisation and should be admitted to the rights of all other Australian citizens.23 While so far in advance of his Liberal colleagues that the Select Committee to give Aborigines the vote was not set up for another ten years, Hasluck's views were increasingly those of the Australian population in the late 1950s. Indeed, legislation like that of the Nationality and Citizenship Act (1948) and its successive amendments clearly included the Aborigines in all the rights which flowed from its express adoption of the ius soli for all those born on Australian soil.24 But, in the 1960s and 1970s the right to vote proved an empty formality. Since it had been chosen as the measure of assimilation, its emptiness also challenged the notion of assimilation itself. In turn, since at the time the basis of Australian citizenship rules for all 'aliens' was proof of assimilation, this challenge also opened up possibilities for other 'ethnic' groups in Australia. The concession of the vote was built on to a past history of inbuilt prejudices and the legal right of the state officials to use discretion to deny Aborigines their rights. Typical was that which arose from a certificate of exemption. This was a document which a person of Aboriginal descent carried that exempted him or her from the provisions of the relevant Act 'protecting' Aborigines, by which we may understand making them civil nullities by depriving them of citizenship rights. Ella Simon recalls the treatment when she appeared carrying her certificate of exemption under regulation 56 of the Aboriginal Protection Act (NSW) (1909-43), s. 18c, issued to her in 1957. The next elections came along and I went with the family to vote with them. That felt good. I was pleased about that, being able to cast my vote and feeling that I had a belonging somewhere ... I felt I had really become an adult ... On voting day I rolled up at the voting booth in Glenthorne and told them that I was on the voting roll in Sydney and not Taree. 'Oh', the man said, 'you're not eligible to vote. People with Aboriginal blood aren't allowed to
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vote. That's the law'... Just then I saw some people I knew come in and cast their votes. Nobody tried to stop them. They had Aboriginal 'blood' all right, but their skins were much lighter ... I knew I wouldn't get any further that day, so I left ... As it turned out, do you know the real reason why they had had the hide to stop me from voting? Because we lived in the 'Blacks' Camp' we couldn't vote and that's the truth. And that's one reason I said that I think the middle-class whites are the worst when it comes to prejudice. They don't think about what they are doing ... if you lived out there you just had to be no hop-
Ella Simon went on to recall experiences like this: 'I had a terrible job trying to get people to understand ... that they should be on the roll'. They were afraid, not because of lack of education or because they did not understand the white world, but because the law compelled them to vote. And for them the law meant the police and being beaten up. It was the same kind of fear that had been in the hearts of these people ... from the earliest of days ... it went right back to the days when they used to come and try to take their children away because the law said the children had to go ... The women would be crying and the children hiding in the bush [or under the house as Doug Nichols did at Cumeragoonga] ... these were the kinds of feeling that words like 'compulsory' and 'law' aroused in them.25 Her story is part of a constant refrain repeated well after the reforms of the 1960s. In the mid-1970s Pat Miller put it this way: anybody who has twenty-five per cent Aboriginal blood in them or a strain of that blood, is an Aborigine [according to both New South Wales and Queensland legislation]. I have never heard anything so puerile in my life as to say: 'Well, so and so has twenty-five per cent Aboriginal blood, fifty per cent Irish blood, twenty per cent Australian blood, so much British blood - whatever. It is not only ridiculous but quite unscientific. We all have blood ... Now, if a magistrate ... determines that a person with twenty-five per cent Aboriginal blood has not been behaving himself, and needs so-called 'protection', he may arbitrarily place that person under this Act. In which case, if he were free before, in a general way, he now becomes a 'slave' in effect. I feel extremely angry.26 In some more remote areas, even when exercised the vote was almost a farce for many years, so much was it manipulated. Both the whites and some traditional Aboriginal leaders were hostile to its introduction, even where, as in the Northern Territory, it could have been very significant electorally.27 It appears that in the 1960s the vote was most likely to be exercised by those most integrated and distant from traditional society, usually city-dwellers.28 In Banggaiyerri's (Jack Sullivan's) story, the first
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elections of the 1970s are recalled like this: When we had elections the first time I didn't vote because I was not on the list. That was a few years ago. That first time they went for Liberal because the white man told them, 'When you voted for the Labor well they gotta put you down an work the Christ outa you,' an they put it over them ... [the next time] I voted for the other bloke and that must have been Labor. I forget... in 1977 ... we voted for Ernie Bridge, Labor ... The two postmasters who ran the voting turnout never even asked the blokes or helped them out you know. When they said, 'Oh we got the card to givim', they said, 'Right just go over to the box.' Well no-one was there and the poor old boys didn't know where to put the bloody thing, where to put the mark and all ... And they had to walk through the water waist deep just to get there, the poor old buggers ... They just gave you the card and you told them who you were going to vote for, and they put it down and handed the card back. Then you went to the box and put your cross or something on the number. Well it never went right, say if some of the old men were half blind ... Alan Ridge got a lot of those Broome blokes to vote for him because he put the wind up them. He told a lot of those boys. 'You people votin for a lota them coloured people like Ernie Bridge an all them, well when Ernie win well all the foreigners come in and shoot all you fellers ouL'»
From the perspective of 1979 we would have to agree with Colin Tatz's view that it was moronic to say that Aborigines had attained political equality because they had the vote. It was assuredly manipulated and often there was a less than 50 per cent turnout. Yet, the vote is undeniably the primary right of a democratic citizen and was enforceable at law. When challenges were mounted after the extraordinary events of the Kimberley election of 1977 (see below), manipulation of the vote became much rarer. This was made completely clear when Ernie Bridge challenged Alan Ridge. Ridge, a Liberal Minister, had sent five solicitors as scrutineers to invalidate as many votes as possible in the election discussed above. They intimidated Aboriginal voters with their questions and they bullied some presiding officers into refusing to give Aborigines 'how to vote' cards. The Court of Disputed Returns held that ninety-seven votes were denied as a result and the election was declared void. Although Ridge was elected in the re-run, which was supposedly clean despite Banggaiyerri's recollections, in 1980 Bridge was returned by a resounding majority. It was clear that Ridge had feared that the potential 3000 to 4000 Aboriginal votes would end any hope of his victory. His object was therefore to exclude illiterates from the vote. In 1979 the Liberal government did introduce legislation to make voting more complicated.30 In fact, there was a massive politicisation of the local Kimberley community, and even attempts to get voters so drunk that they could not vote failed to block Ernie Bridge's election. This put paid to the unilateral view that all citi-
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zenship did was encourage more drinking and the appearance of sly grog shops.31 In the late 1980s, despite occasional continuing problems at election time, the issue of the manipulation of the vote became much less important. This was due to the overcoming of the deficiencies in other areas of rights after they became the principal object of concern. There were significant education programs and many more Aborigines were elected to parliament. Once there they experienced the same problems as other Australian citizens, the failure of the governments or parties to respond to any but significant electorates. This is an abiding problem they will face with other Australian citizens until there is constitutional reform and devolution of decision-making from the centre.32 What this experience of the hollowness of the vote revealed in the 1960s and 1970s was the need to guarantee in law the rights which made it the exercise of real autonomous decision about the good. These did not exist. A typical report for the Northern Territory in 1964 stated that: 4 no Aboriginal ... receives the unemployment benefit and the tuberculosis allowance at the rate of £1 a week is paid to Aborigines, who, if they were Europeans, would receive the allowance at the rate of some £12 a week. Adequate wages confer freedom of movement, as distinct from theoretical freedom of movement, and social freedoms which in practice do not exist without an adequate income'.33 It was clear to many people that the existing social legislation would have to be replaced throughout the continent by laws which 'give practical expression to the aims of encouraging and assisting Aborigines to persons of Aboriginal descent to become members of the general community, having no disadvantage or discriminatory modification of citizenship because of race'. 34 These requirements started to be met when the Whitlam government was returned to power in 1972. Whitlam himself admitted how much his own success depended on ethnic migrant support in his electorate of Werriwa. But his commitment to multiculturalism and to a new deal for the Aborigines had more than petty political motives. Paramount in his own drive to renew the ALP had been the recognition that the ALP was racist before it was labour. He believed that this racism permeated white Australian culture, in the White Australia policy and the treatment of Aborigines. So, as against Doug Nichols' experience of being a soldier in the Second World War, Whitlam recalled in his book, The Whitlam Government 1972-1975: 'I first witnessed the discrimination against Aborigines in World War II. A young and keen Aboriginal member of the ground staff of our RAAF Squadron applied many times to join aircrew. He had the Intermediate Certificate, which was the qualification for aircrew at that time. His applications were constantly rejected. We were all convinced that his sole disqualification was his
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race'. 35 Since the Australian culture self-defined itself an Anglo-Celtic nation, to be Anglo-Celtic was to be racist. This was almost explicit. The Jervis Bay Naval College requirement for entry in 1963 ran: T o be eligible for entry ... a candidate shall be the son of British subjects and be substantially of European descent, the burden of proof in a doubtful case resting upon the guardian of the candidate'. As if to highlight how much Australia would have to reconsider its myth of superiority even to the British, Whitlam pointed to the plaque on the Nelson column which showed a negro sharpshooter standing beside Nelson on the Victory.^ In 1970 Whitlam drew out the implications of his rejection of the monolithic national identity in favour of multiculturalism by telling the Citizenship Convention that Australia had much to learn from newcomers and those arriving from non-British countries whose standards were higher and more advanced than those of the insular and smug Australia of the time. While not directed at the Aborigines, such a recognition that standards other than those of the 'myopic' commonsense of the Australian experience should be adhered to here, could only result in a new approach to the Aborigines. In particular, it suggested that the treatment of the Aborigines should be measured against international standards and not local self-congratulation or hypocrisy. Among the standards he pointed to were those set by the Universal Declaration of the United Nations (1948) and the International Labour Organisation Convention 107 - Indigenous and Tribal Populations. The first declared that all human beings, irrespective of race or culture, were entitled to vote and to representation in parliament, and the second that '... The enjoyment of the general rights of citizenship without discrimination shall not be prejudiced in any way by special measures of protection for aboriginal persons in any state'. Whitlam could have added Article II of the Convention on Genocide (1948) which was even more telling by its inclusion in 'genocide' of 'forcibly transferring children of the group to another group'. Australia had signed all, but, as Whitlam rightly pointed out, Menzies had had no intention of applying them to Australia, considering common law standards good enough. In fact, the common law standards were used to avoid the international standards. For example, in the Northern Territory the disenfranchisement of 15 277 Aborigines (bar one) had been achieved by making them all legally wards of state.37 The situation was, as we will see, worse in Western Australia and Queensland. Given his views, immediately on election Whitlam introduced measures to make the provisions of the UN Convention on the Elimination of all Forms of Racial Discrimination (1965) apply in Australia. He endeavoured to remove 'a stain from our national honour and [bring]
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back justice and equality to the Aboriginal people'. This he sought to do by giving them a voice, creating the National Aboriginal (Consultative) Council; adequate self-government through the Aboriginal Lands and Associations bill; and introducing health and other social services. His espousal of Aboriginal art and folklore through legislation, proposed in 1973 and finally enacted by his successor in 1981, was much more than symbolic. Indeed, in some ways it was more significant for Australian citizenship than were the more prosaic and material measures, necessary though the material measures were. In fact, it recognised the validity of the different culture, its perceptions and values, and that all Australians had something to learn from it. Thereafter, the Aboriginal voice started to come through loud and clear. Today specialists recall the shift in national perceptions from those of a 'dark' and 'threatening' people embodying the evil of the incomprehensible, a force threatening white civilisation, to the notion that Aborigines were the epitome of 'spirituality'. If both were cliches, there was nevertheless a massive shift in perception. Aboriginal people became subjects, not objects of policy. The first notable way the Aboriginal voice was heard was through the demand to get the land back, especially in Western Australia, Northern Territory and Queensland. This was so threatening to the whites that they opposed bitterly not only plans arising from the Woodward Report of 1974 that buy-back provisions be introduced, but the much wider demand that native title be acknowledged in law. To explain that hostility more than economic loss needs to be adduced. It challenged the basis of the rule of law in Australia and thus brought into question all public standards long accepted. Land and Values
In the 1970s the High Court's statement of the law, notably in the Gove case of 1971, had highlighted the fundamental limitations of the common law. In that case, the progressive Justice Blackburn had felt himself obliged to hold, because of the rule of precedent, that there was no native title recognised by the common law of Australia. After the Whitlam reforms, begrudgingly continued by the Fraser government in 1975-83, and then with more window-dressing than substance by the Hawke government elected in 1983, the common law tried to up-date itself in many areas. The ALP position was simply that, as the AngloCeltic system of law, the common law had been found wanting in defending the rights of citizens. A series of cases, Toohey v. Northern Territory; Koowarta v. Bjelke-Petersen and others, started to establish Aboriginal right to be heard in their own terms. Strangely, they did this by reference
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to European-based administrative law reforms; or by using the external affairs power of the Constitution s. 51(xxix) to protect Aboriginal rights. Both the cases referred to concerned attempts to transfer large tracts of land to the Aborigines, which local officialdom attempted to prevent by dubious legal chicanery. When they were won, the Aborigines, in fact, advanced the cause of all Australian citizens by making international Conventions an obligatory point of reference for the officials of the Australian state. The latest anti-state dimension of this is in the Teoh case.38 The interest of the two cases for citizenship lies in the way the 'traditional owners' of land, variously understood, 39 sought to establish the bases through which their voice could be brought into the political debate. The place of basic economic and social rights in the European tradition of citizenship, as expressed by Article 2 (2) of the Convention on Racial Discrimination, was being established in all but British common law countries. What the Aboriginal approach to land did was replace the white notion that such rights stopped at social services, pensions and so on, by a cultural dimension which maintained that wellbeing and human dignity could rest on another different relation with the earth. In doing so, they started to make a specific contribution to citizenship theory in their own voice. This was not simply the obvious point that there had to be a respect for diversity behind the walls of rights, but how the general rule could be translated in different, culturally acceptable ways within each group. Once Aborigines could define the land as a resource which was both economic and spiritual, they had denned it in their own way. By the mid1980s they had done this. In, for example, the Pitjantjatjara Land Rights Act (1981) and the Maralinga Land Rights Act (1984) a 'traditional owner' was defined as 'an aboriginal person, who has, in accordance with aboriginal tradition, social, economic and spiritual [emphasis added] affiliations with and responsibilities for, the land or any part of them'. 40 This breakthrough to a contribution by the indigenous people of Australia came with the Mabo case of 1992. The complicated practical consequences were still being implemented four years later. 41 Mabo recognised the existence of native title. 42 The problem of how this might extend beyond the particular Torres Strait island plaintiffs has been the object of much debate. Concretely, it led to the Native Titles Act of 1994. An article by R. Pitty and I. Hughes points out that the use of the High Court to establish such rights was contradictory in that it was itself an 'alien' institution and the judgment did not touch on 'sovereignty' directly.43 But the Native Titles Act was the result of consultation between the state and Aboriginal spokespeople and the result of considerable pressure from below, notably in the Eva Valley protests of 1993, where different Aboriginal communities established a common program
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for goals about land ownership. While the matters of contention still remain in state hands, and the tribunal set up to administer the Act from Western Australia has stonewalled ever since, the whole history is very significant for citizenship here and elsewhere. For all its shortcomings, the Mabo case established the existence of native title in Australia, and therefore of a legal order here before the whites arrived, thus ending the terra nullius doctrine. This means that whites can no longer lay claim to a non-negotiated right of sovereignty. In the place of the earlier fiction there was posed the possibility of a right to a treaty and thus a completely new relationship between the Australian state and the Aborigines, and about what citizenship could be for any inhabitant of this continent. The early memorials of Cooper and others had often made invidious comparisons between the situation here and those of the Maori people who had rights under the Waitangi treaty.44 Henceforth, there will be a search for evidence of a treaty which would further alter the terms of the negotiation about rights.45 It is regrettable, given the contribution to understanding of citizenship, that Aboriginal citizen rights continue to lag so far behind practically. Australia has become a cause for international concern in the 1990s for its failure to meet human rights standards which are the basis for democratic citizenship.46 The tenacious hangover of Anglo-Celtic norms remains a problem. It highlights how important the tussle of terms or discourse is and will become as we approach the second millennium. Compared with the 1930s the laws are there, so are the institutions, but the reality of the denial of equal citizen rights to Aborigines is still great. Particularly responsible in slowing down what appeared a remarkable leap with Mabo has been a retreat to a Labor version of the notion of the national family. This was expressed by Paul Keating again on ABC radio on 7 July 1995. It has as little place for different values as did Menzies' old Anglo-Celtic view, as it is a mirror reversal of the 'more British than the British' position of the past. This brings me to the central theme of this chapter: the problem of closed discourse. The Problem of 'Belonging'
The basic problem where the Aborigines and citizenship are concerned is that through all the changes in law, institutions and official policy in 1901-95, there has been a hidden continuity. The continuity expresses itself in the discourse about the problem of citizenship. The abiding theme or term in this discourse has been an implicit or explicit reference to the category of 'belonging' to the national 'family'. This has
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always been seen as a premise for admission to citizenship in Australia (and elsewhere). While the structure of the discourse has meant that both the terms 'belonging' and 'family' have taken on different meanings, so far none of those meanings has been open enough to incorporate Aborigines. The present debate does not promise much improvement. However, there are glimmers of hope that in the future the present unilateral sense of 'belonging' will be replaced by a more double(d) sense. Indeed, international and local trends tend to reinforce a new sense of 'belonging' although the old one still prevails in government policy. The first meaning of belonging to the national family in Australian discourse about citizenship was both explicitly and implicitly expressed in blood terms. To be a citizen required someone to belong to the nation as a child or family member belongs to a family - by blood ties. We see this view expressed in the words about 'the crimson thread which unites us all' to talk of sharing British blood, common in newspapers in the first three decades of this century. While the original, ancient Greek definition of who could be a citizen also advanced the view that only those of a blood lineal descent could be citizens and it was possible to think of the small city-states of the ancient world as kinship systems like large families, the Greek view with its notion of trust, patriarchy, blind loyalty to hearth and home was no longer appropriate for large-scale, modern societies. The modern European states who had conquered the world in the fifteenth to eighteenth centuries had, in fact, started as small city-states, usually of one ethnic group, sharing a language, culture and common collective memory. That city-state had then conquered the other, ethnically homogeneous groups and forced them to live within one political system. To do that, the southern English had forcibly destroyed the languages and cultures of the Welsh, Scots, Irish and so on. But, because these groups fought back in defence of their pasts, the state had sometimes had to do deals with them and move to a policy of persuasion through education (indoctrination) and social restructuring. It had also had to admit them to all the rights of the English. So the British gave up the old 'blood' notion of belonging in favour of the deep cultural notion that merely being born on British soil would give a person citizen rights. This ius soli also guaranteed that whatever the ethnic origin of the person admitted to citizenship, that person would be culturally English. This was obviously the consequence of being born into a society where everyone spoke English and the social arrangements were basically English. We see this transition with secondgeneration migrant children here. Countries with high immigration rates had to reduplicate these conditions with first generation migrants who wished to 'naturalise'. In all cases, we observe the demand for prior
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long residence and good knowledge of the national language as proof of transfer of allegiance to the new national family. When the dominant group could ensure economic and social benefits flowed as a result of 'coming over' to them, then the conflictual past could be left behind fairly easily. In fact, it became very important that it be forgotten and a false collective memory be fabricated, by suppressing the histories of the defeated ethnic groups. 47 A continuing problem became how to ensure that those aliens admitted to citizenship and given a say about the laws under which they would live would not use the benefits against the system. One of the best techniques for forging a new sense of national identity was through a national army where the one imperial language was learnt and a common enemy identified. The Greek notion of the warrior-citizen thus was deliberately continued. The promise to fight for one's new country is part of most naturalisation ceremonies everywhere. The hostility towards dual citizenship was another. In some countries the Greek blood notion of belonging, even in conditions of modernity, continued, either because there was no defeated ethnic group to cope with, or very little inward migration. In these countries, once a warrior-citizen had been forged, the other was regarded as enemy just because he was other. Many, if not all the countries which became Fascist after 1927 shared a past of a citizenship based on blood, and a belief that the primary duty of a citizen was to fight for his kin, hearth and home. Typical were Germany, Japan, Italy, most central European countries, Spain, Portugal and even in a mixed fashion, France. The British could claim that their rules for admission to citizenship were much more open than in such states. At least a child of a foreigner born on national soil automatically became a citizen and even that child's parent could prove that they had changed cultures and naturalise. But in Australia that rule was ignored in official and unofficial discourse until at least the mid-1960s. Here, the notion of belonging and family which was used was the blood notion more common in Fascist regimes. It was necessarily racist. This meant that Aborigines found it almost impossible to become citizens. Even after the 'blood' approach was given up in favour of Australian national identity as the continuation of deep British cultural traditions, the very idea that a prerequisite for citizenship was to belong culturally to a single national norm which was impossible, also made citizenship almost impossible for Aborigines. Whites who subscribe to such a view wittingly or unwittingly exclude Aborigines. For most of Australia's racist history the view was used deliberately to keep out Aborigines. The Aborigines only started to force its reconsideration when they
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refused to go along with arguments that the grant of citizenship must always depend on evidence of already belonging to the 'national family'. In their case, this was translated from showing how 'white' they had become into 'proof of civilisation, or having learnt to play the AngloCeltic white man's rules of the game. (Not all white rules were or are so exclusive.) Suppose you were an Aborigine who wished to become a citizen after 1901. What did you have to do? Basically, the first hurdle you faced were the State laws which applied to you, as the Commonwealth Constitution gave it no jurisdiction over Aboriginal affairs until 1967.48 The State legislation was designed to ensure that Aborigines should not benefit from otherwise progressive laws for the population or the workforce. Their lives were governed by the ruling opinion that they were a doomed race, in need of protective measures, to ensure that their extinction should not pose a problem for the state. Under the guise of protection this legislation deprived you of freedom of movement by forcing you to live on reservations; it forcibly removed your children from you to educate them or save them from contact with your culture; it compelled you to work for other than fair reward; it excluded you from award wages if you worked outside a reservation; it denied you all the social service benefits enjoyed by whites; and, of course, it denied you all the civil rights such as freedom of speech or organisation. The transition from this status of a 'slave' to a 'citizen' was, in most cases, controlled by the police. They could exempt you from that legislation by the grant of a revocable certificate. Their discretion became less and less arbitrary as the century progressed, but the Aborigine was subject to their discretion. In a strict sense he or she did not control their own life. The one right they had was the Hobbesian one in face of Leviathan. Leviathan could not deprive him or her of that life arbitrarily. The discretion was particularly important in States where the bulk of the Aboriginal people lived, and where they could not vote except by exemption: in Queensland and Western Australia. The thrust of the exemption is clear from the certificate of exemption in use in Western Australia. It applied to a 'native' within the terms of the Native Administration Act (1901-41). The applicant for citizenship had to make (among other things) a statutory declaration that 'for the three years prior to the date of application he [sic] has dissolved tribal and native association except with respect to lineal descendants and native relations of the first degree' and that he was otherwise a fit and proper person to obtain a certificate of citizenship. The magistrate granting the certificate had to be satisfied that in the two years prior to the application the applicant 'has adopted the manner and habits of civilised life; that the full
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rights of citizenship are desirable for and likely to be conductive to the welfare of the applicant; that the applicant is able to speak and understand the English language; that the applicant is not suffering from active leprosy, syphilis, granuloma or yaws; the applicant is of industrious habits and is of good behaviour and reputation'. That lucky person was then issued with a certificate with a photo like a passport. He or she was also 'no longer deemed a native or Aborigine'. However, the certificate could be revoked or suspended if anyone complained that he or she was not adopting the habits of civilised life; or was convicted twice under the Native Administration Act, or for habitual drunkenness, or had any of the diseases listed. Then he or she again became deemed a native or Aborigine.45 Summed up, an Aborigine had to meet at least the same sort of criteria as any 'alien' applying for naturalisation in Australia, despite his or her rights under the ius soli. Indeed, the Aborigine was worse off since that citizenship could be revoked at discretion, whereas that of an 'alien' was virtually unassailable once granted, unless fraud was involved. It is important to stress that this certificate was regarded as a sign of progression beyond the racist attitudes which had completely excluded the Aborigine from any voting rights before 1944 in Western Australia. But the basic thrust of what were regarded as progressive positions of post-Second World War Australia was revealed as little better. The grant of citizenship depended on an Aborigine turning his back on his kin, his culture and his past and becoming an ersatz Anglo-Celt. He had to prove assimilation to the values of the latter and therefore had no say about the nature of citizenship of the polity. There is abundant evidence that Aboriginal organisations in the eastern States had tried this approach themselves again and again in the 1930s and 1940s. The leaders of those organisations were frequently of 'mixed blood', as were the Aboriginal populations of those States. They portrayed themselves and their constituencies again and again as becoming like the whites and leaving their past culture behind. Thus, in William Cooper's petition to the Prime Minister in 1934 he emphasised that many of our 'civilised' Aborigines had been granted citizen status. Elsewhere are stressed the ability of Aborigines to be trained to white customs and habits and that they could be industrious. When the Aboriginal Advancement League was established it drew distinction in its Constitution between 'primitive' Aborigines, semi-civilised and 'civilised' natives. By the 1940s the 'mixed blood' Aborigines were seen officially as in transition, or assimilating with the Anglo-Celtic culture. In Elkin's proposals that Aborigines be admitted to citizenship, he affirmed expert knowledge of this transition to the white culture and that the experts should be the arbiters of that transition.50
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In truth, until the 1970s assimilation bore no fruit, nor could it since it was patently built on fiction. It also masked a much more virulent racism which added up asserting that Aborigines could never 'cross over', no matter how hard they tried. Few, in fact, ever obtained a certificate of exemption. As Ruby Hammond put it: 'Look at me ... I'm clearly much more black than white, yet I have a certificate from the government to say I am white. I didn't seek that certificate. I have to have it. Doesn't that strike you as blatantly discriminatory, as racist?' 51 The very people who advanced the culturalist approach to belonging and thus to citizen rights, also openly advanced racist notions, based on blood. In the 1930s the Sydney anthropologists quite openly studied the Aborigine as if the latter could be placed on a lower rung in the scale of evolution. Speculations about affinities with chimpanzees were accompanied by articles which were considered serious scholarship about the effect of the admixture of white blood. Administrators mirrored those attitudes. The experience of Western Australian Aborigines, who were treated as if they had more in common with an idiot than anybody else, is summed up in these telling lines from a letter of 1936: The white race, in its dealing with the dark race, seems always to think in terms that involve the Aboriginal as something sub-human, or, at least, outcast. Many of our friends even seem to be infected with a superiority complex which is not fair to our race. May I plead for an attitude that will recognise our real humanity for, though we have suffered unspeakable horrors since the coming of the white race, we still have that self respect which causes a feeling of hurt when received with a superior and merely tolerant attitude ... The supposed superiority of the half-caste is not admitted, and, in fact, all thought of breeding the half-caste white, and the desire that that be accomplished, is a creature of the white mind. The coloured person has no feeling of repugnance towards the full blood, and in fact, he feels more in common with the full blood than the white.52 Indeed, the white 'friend' and promoter of Aboriginal citizenship in 1944, Professor Elkin, divided them in their transition to assimilation in blood terms, which he thought were 'apparent'. '"A half blood" also called a "half-caste" is a person with more than 25 per cent, but not a preponderance of aboriginal blood.' 53 Clearly, 'biology' and 'culture' were deeply confused terms in discourse about citizenship and the Aborigines. Regrettably, they remained confused until the early 1970s. The figures for certificates of exemption in Western Australia tell a tale. By 1949, 300 had been granted; by 1950, 571 and by 1951, 645. This meant an average of ninety-two exemptions since the Act of 1944. This was a drop in the bucket of the Western Australian Aboriginal population. 54
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However, it is in the postwar debate about citizenship rights that it becomes clear that the deep cultural argument about the national community, to which a person must belong before meriting citizenship, is not significantly different from the racist argument. By a 'deep' cultural argument we mean that argument which speaks of the genius of the English-speaking peoples for government, acquired over millennia of supposedly sturdy freedom. This was the staple of discourse about citizenship given to aliens to justify the demand that they turn their back on their cultural pasts. Since it is completely unprovable it belongs to collective memory rather than historical fact. But it is treated as something so deep-seated that it is almost natural, or inborn. It comes, so to speak, with the blood. The Discourse of Exclusion We look at the debates on the Western Australian Native (Citizens) Rights bill (1944-51), the Queensland Aboriginal and Torres Straits Islanders bill (1965-72) and the New South Wales Aborigines bill of 1969. They all reveal the inherent closures of a discourse which demanded belonging to a national family first before citizen rights were granted. Each sought to make the existing situation more just but each is revealed as racist, making it impossible for Aborigines to meet the requirement of 'belonging', as then understood. The premise in the debates was always the superiority of Anglo-Saxon civilisation and institutions over all others. Indeed, it was difficult to discern a recognition of more than a European Judaean-Christian civilisation even in 1969. The myopia of commonsense, 'on the ground' Australian knowledge dominated in debate. We read: 'I have learnt quite a lot through my closer association with the natives and I can say definitely that in my opinion that the only time the natives were really satisfactory was when they were under military control ...\ 55 It was commonsense that when 'natives' left their past behind; settled down and started to work in steady jobs, they were becoming like the rest of the Anglo-Celt community. They had to dissociate themselves from their 'natives-in-law'. But although they might try to do so that was frequently not good enough. The following story illustrates the point: The parents brought up their children to live like white people. Everyone spoke highly of him and of his children as well. One of his girls has very good references from those for whom she has worked in the locality. There is another half-caste who has shown signs of being well worthy of citizenship rights. He is certainly a much better writer than I am and he is a hard working individual. His wife left him and he tried to get a divorce, but the King's Proctor intervened ... This man took up with another native who went to
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one of the settlements but she was taken away from him ... Owing to her friendship with this half-caste, she has become the mother of a child to this man; and, because she committed what is, in the eyes of the Department, a crime - but which is something that thousands of women throughout Australia are doing daily - she had her rights of citizenship taken from her and is now classed as a native.
The speaker, however, went on after objecting to 'this grievous wrong' to add a racist coda: 'If the Government would grapple with the halfcaste problem by segregating these people entirely from the natives and training the boys to be useful citizens, in a very short space of time there would be a vast improvement. The true blacks in the southern portion of the State are dying out'.56 The debates showed the hypocrisy of the 'children who are growing up' thesis, which apparently allowed the possibility of those who wished to turn their backs on their families and kin to become citizens. It was nearly always complemented by the argument that this was impossible to do because of problems related to blood and race. For example: 'Having read the bill I find that it contains nothing to which I can object. At the same time, I do not think that many natives will reach the standard required; certainly no full blooded native will be able to do so'. If, in fact, the Aborigines had observed the requirements they would have been deprived of fundamental rights like freedom of movement, association and organisation. These were all necessary to self-defence. When Don McLeod tried to organise the Aboriginal stockmen to strike for equal wages, they had had to congregate far from any white eyes, and keep on moving to avoid the police, since such meetings were forbidden, although legal since the repeal of the Six Acts in England which had effectively prohibited public assemblies. The Western Australian Act did nothing to change this. By preventing Aboriginal citizens from meeting their kith and kin it prevented their formulating any firm group opinions about the way to use the voting power they henceforth had.57 As the Chief Secretary stated: We desire as far as possible to see that the natives who are given citizenship rights shall not associate with natives other than those who are very closely related to them ... If a half-caste wishes to retain his certificate of citizenship then he must dissolve all association with natives excepting those who are very close relations ... a native, having received a certificate of citizenship, will be regarded as a white man.
The subject and the predicate were interchangeable, making clear the racist nature of the transfer of cultural allegiances.
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Such attitudes were alive and well when the Queensland Aborigines and Torres Straits Islanders bill was debated in 1964. The demand that an Aborigine prove that he had turned his back on his family and culture before he was granted citizen rights was again central. A certificate was needed even to visit a reservation. Aborigines had to become white before they could be citizens. Of course, they still could not. Moreover, the discourse continued in the face of acknowledgment of the UN Declaration of Human Rights and the Nationality and Citizenship Act of 1948 which guaranteed Aborigines citizen rights irrespective of their different culture. One speaker made clear what was being done in the redefinition of the Aborigines and Torres Straits Islanders by the bill: 'instead of his being virtually a slave and having to apply to be free, the Minister is reversing the process and giving him freedom and, if he wants to be a slave he can apply to be one'. 58 Again and again speakers made clear the difficulties of the 'coming over' notion. 'I suggest that if they are to live as white people ... and this is the big problem of assimilation ... they must get out of the habit of all gathering together and getting down to the lowest denominator'.59 A student of classical democracy might have thought that that was an apt description of democratic procedures. In a scenario where admission to citizenship depended on 'observing the same customs, and influenced by the same beliefs, hopes and loyalties as other Australians' in a nation 'organised for the whites', the only conclusion was that the price of citizenship was the disappearance of anything distinctively Aboriginal. The only saving grace was the recognition by some members that such a policy of extermination of a culture and a 'race' was unChristian and that it was impossible on such a basis that Aborigines ever contribute to the debate about what was good for Australia on their own terms.60 This showed that at the beginning of multiculturalism there was both an acceptance of the cultural contribution Aborigines could make to the national identity, and a consequent readiness to place them under Commonwealth jurisdiction - if only in limited circles. So one speaker quoted Oodjaroo Noonuccal at length in his speech. The lines from her 'Aboriginal Charter of Rights': Make us mates, not poor relations. Citizens, not serfs on stations.
and those from 'All One Race' with its pleas for universal harmony without the stress on the mixing of blood, showed that assimilation was no longer self-evidently a good policy.61 The trend towards the multicultural discourse was clearest in the
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1968-69 debate on the Aborigines bill in New South Wales. Yet even in this debate the notion of the primacy of a European national family with a shared collective civilisation and memory was still uppermost. Thus the Minister started by baldly affirming that: 'Civilisation as we know it began only about 5000 years ago when farmers in the very fertile areas around the Eastern Mediterranean began to produce sufficient surplus food, which allowed such people to specialise as craftsmen, merchants and priests'. 62 The ethnocentrism of such a view is only surprising in a society where, ten years later, books about 40 000 years of Aboriginal civilisation would have become coffee-table items in Australian middle-class homes. The ethnocentrism had existed ever since 1788. But there had been changes due to some practical success in policies like those proposed in the 1965 joint State-Commonwealth Aboriginal Welfare Conference. Then assimilation had still been the goal: 'all persons of Aboriginal descent will choose to attain a similar manner and standard of living to that of other Australians, and live as members of a single Australian community'. But it was conceded in the New South Wales parliament that this did not extend to looks, and a coffee-coloured race through intermarriage was no longer a strident theme. The idea that something could be learnt from Aboriginal culture was also stronger. 63 Structures were proposed to facilitate a contribution from the Aborigines themselves, ending the elitist managerialism of the Elkin era. It was, of course, easier to assert that there was no 'colour problem' in New South Wales where 'the Aborigines ... are predominantly white'. But, by 1969 it was accepted that the half-castes chose to define themselves as Aborigine. Greater recognition of the important role played by women in the Aboriginal culture was stressed as useful to self-management which would prevent further 'adulteration' of Aboriginal culture by whites. 64 In sum, we see a gradual shift in the discourse of 'belonging' in 1944—69. It was marked by a greater acceptance of the Aborigines as subjects and not objects of policy. In turn, this implied a different notion of 'belonging' which broke through in the Whitlam period. The new notion accepted that the Anglo-Celtic community could learn from the voices of the other cultural traditions, including that of the Aborigines. 'Belonging' no longer took on the assimilationist form where it meant that the weaker group could join the stronger whose values would be expected to prevail. It was not only the internal history of Australia which explained this shift. Rather, in the 1970s, as the Vietnamese people defeated the great white imperial power, as Japan emerged as the strongest economy in the region, white Anglo-Celtic Australians found it less and less easy to believe that Australia had nothing to learn from others. There were
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older civilisations which Australians started to study. In this overall context the Aboriginal culture became a source of potential richness. Indeed, the Aboriginal demand for a privileged place in any multicultural society was itself significant. An Aboriginal Contribution to Citizenship
The logic of self-organisation and the emergence of the Aboriginal voice in the 1970s and 1980s which refused the notion of becoming white and 'crossing over' had the potential to contribute to citizenship theory itself. This did not mean that even well-meaning whites wanted to listen. The self-organisation and different voice had started with Whitlam's implementation of the UN Convention on the Elimination of all Forms of Racial Discrimination. This broke down the resistance in Queensland and elsewhere. The Aboriginal people then carried the fight to the whites by using 'best international practice' in the treatment of indigenous peoples as their point of reference for further affirmative demands. Their alliances with other indigenous peoples helped undermine the 'national family' notion of citizenship of the past. It pointed to commonalties and loyalties which crossed national borders. On many public issues Aborigines found more in common with Maoris and Fijians than with white Australians. This was doubly important. It replaced the binary terms of the discourse of Australian nation and Aboriginality with three terms: the international community, the Australian nation and Aboriginality. To obtain citizen rights it was often better to by-pass the second. Strange alliances like those with the Communists and the nationalists, like Stephensen's of the 1930s and 1940s which confused issues, could be left behind. The appeal to international standards and fora compelled Australians generally to reconsider adherence to Anglo-Celtic standards in law and politics. Directly associated with the Aboriginal emergence was the Human Rights and Equal Opportunity Commission. Indirectly, the abolition of appeals to the Privy Council in 1986 closed down one avenue and opened another. The way to both was paved by the cases about Aboriginal rights which were discussed above. This, in turn, allowed a variety of indigenous and ethnic criteria into the rule of law here.65 The notion that the truth itself is subject to more than national majority standards and understandings, and that what is reasonable has to take into account different cultures, flowed over into areas of increasing international concern where new rights were emerging, like the environment. Moreover, Aboriginal insertion of their concerns into the international area made it easier for international agencies to assess and criti-
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cise Australian norms. In particular, the horrendous Aboriginal prison death rate and the poor health and sanitary norms came under scrutiny, and Australia started to receive less than optimal ratings for human rights after 1990. All this forced it to consider these matters more closely and less smugly.66 The terms of any future debate about changes themselves will have to be rethought. The central problem for all liberal democratic citizenries has been how and where to draw the lines between the public and the private. Human rights protect the private from the public as they guarantee human dignity. They therefore make possible the input of different voices into the political consensus. The traditional demarcations had not taken sufficient account of the different cultural norms of different ethnicities, that is, group rights rather than individual rights. Multicultural politics made consideration of such matters crucial. The Aborigines added to this general concern their own particular understandings of the 'spiritual' nature of the private. This prompts whites to rethink the relation between humans and nature and towards place and time. The direct effects for environmentalists are clear even in Australian law. It is for this reason that the cultural revalorisation of Aboriginal culture under Whitlam was very significant and not mere windowdressing. While it is clear that equal wages for equal work, and say, an equal survival rate for infants in different communities, are rights which a state must ensure for all citizens, and so far Australia has not guaranteed such rights, it is also clear that the Aborigines have compelled a renewed recognition that the ultimate goal of all citizen activists must be the attainment of 'human dignity'.67 To ensure this a sense of self as culturally different must also be guaranteed. 68 The future battles about Mabo will develop this issue. The problem as we approach 2001 and a new Constitution and, possibly, a Republic, is how the Australian state will respond to these novelties. When in that debate Oodjaroo Noonuccal points to the global village, calls for more grass-roots democracy, and states 'White Australians must accept that it is time for them to be the listeners and learners', what is the response?69 As Prime Minister, Paul Keating recognised the global village, but he was scathingly dismissive of more grass-roots democracy, and on the third issue he backed away. Where there was a consideration of a treaty or Makarrata, the policy of the Labor government was that of reconciliation, which does not give an equal voice to the Aborigines. Commentators on the need for some voice through constitutional reform, who appeal for it to be a long, living process of consultation, have not had their suggestions taken up. 70 As we have pointed out, Paul Keating's belief that a new national identity is needed which should incorporate
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the notion of forging together some vision of the future, is instead too like that of the Menzies Anglo-Celtic national family type. It is, of course, difficult to square all the conflicting interests in a state like Australia, especially when global economic forces compose and recompose them with lightning rapidity. It is doubly difficult when some Aborigines take an almost separatist stance and extol Rabuka's suggestion that democracy itself is a European artefact which is not acceptable. When faced with an emerging 'national' program like that at Eva Valley,71 any Australian Prime Minister is not likely to be happy with the reformulation of International Labour Organisation Convention 107. This now speaks of peoples in a way which the Australian state sees as threateningly separatist. But I will close on an optimistic note for citizenship. When the dust settles, many of the refusals of democracy and the Western legal/political tradition so common in recent years will be seen more positively. They can be read as a quite valid complementary demand for more grass-roots discussion; a revivifying of the debate in the agora which we have lost, in which the voices of all peoples may again be heard challenging the massive centralisation and rule of experts that has always been so inhuman in history.
PART III
The Active Citizen and Beyond
This section looks at how far Australia has met the criteria for the 'active' citizen and, in particular, what its attitude has been towards 'democracy' in any of its forms. The record, past and present, is not good. If I may parody an ideological work in this area, Australian democracy was 'stillborn'.1 The first formal legal statements of what it is to be a citizen in a modern state are found in the 1791 and 1793 French Constitutions. They make quite clear that the fundamental right of an 'active' citizen is the right to vote as an equal of every other citizen.2 Aristotle would have found such a formulation unexceptionable3 and it has remained the basic active right ever since.4 The vote was what ensured that citizens lived under laws they made for themselves and were thus not only committed to the state which enforced them, but also free in a meaningful social sense. Through the vote the sovereignty of the people was guaranteed.5 In itself the vote was thus merely a procedural form designed to guarantee that state of affairs which Hans Kelsen has called 'power from below' rather than 'from above'. Democracy, understood as 'power from below', clearly denies the rule of experts. It also regards all citizens as equal through the vote regardless of their real attainments or status in non-political worlds.6 In turn, this only makes sense because the 'equality' refers not to any real skill of a practical or informational sort but to an equality in contributing to the joint agreement on what is the good for that polity. Aristotle's words were that all citizens in a democracy were equal in 'passing judgment'. As each contributed to the collective judgment about the collective good, they were simultaneously recognised in their essential human dignity. 217
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Because the vote concerns the good and not the correct or most efficient solution, it is its ethical dimension which is crucial to the active citizen. The vote arises primarily as an endorsement of a decision about what the collective good should be. It therefore comes after discussion, debate and dissent and is meaningless without that. It should be seen more as consensus in the collective common good than dissent from majority positions. The context for that vote changed from the Greek city-states to the modern state, and today, to a regionalising, globalising world. Its import changed too. The Greeks ruled by direct democracy. Citizens were so few in number that they could meet and debate together each law and pass it in the agora. But, as Benjamin Constant pointed out in 1819, the smallest modern state was larger than the biggest ancient city-state. Therefore, the only possibility was representative democracy where the populace elected its representatives periodically to a parliament and the parliament made the laws on their behalf. Rousseau mocked this savagely as slavery between elections, but there seemed little practical alternative. One solution - to offset the tendency to create an elite of the representatives who ruled while the voter became little more than a rubber stamp - was the binding mandate. It was rejected even in the eighteenth century. On the other hand, by the twentieth century there was widespread acceptance of the notion that there should be representative democracy in as many places as possible to offset rule by an elite of politicians. To ensure that the popular sovereign remained as much in control as possible, modern democracy tended to decentralise power to elected representatives at local and regional as well as national levels.7 In many post-Second World War European Constitutions this decentralisation had added to it a system of citizen initiated referenda and legislation. The example usually referred to in the Australian literature is the very old Swiss model, but it is nowadays also a characteristic of much larger polities which did not have the Swiss tradition of almost direct democracy at town and cantonal level. Indeed, Switzerland is so unusual in size and political arrangements that it does not present the best source of inspiration, except in one regard which is touched on below. It should be noted that neither referenda nor citizen-initiated legislation - whether originating in petition or otherwise - are, strictly speaking, direct democracy as they function as a complement to the representatives' task of making the law.8 However, there is little doubt that the hallmark of a modern large-scale democracy is representative government in as many places as possible, even those of education and work, and that there are established procedures for periodic direct reference of laws to the people for endorsement. What is novel in contemporary debate, which starts from the context
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of a globalising world, is the notion that direct democracy might be reintroduced using modern technology. This would allow both debate on, and participation in legislation, as well as drafting and passing of the laws themselves. Such views were decried as irrelevant and pie-in-the-sky a few years ago, even by advanced democrats. By direct democracy is meant that form of power 'from below' where the citizens of a polity initiate a proposal for a law, where they draft it, and where they also ratify it. As such, it is much more than 'plebiscitary' democracy. It can thus be distinguished from other apparently similar forms like the plebiscite or the referendum. These new proposals are a direct response to the crisis of representative democracy, as citizens in ever-larger regional economic organisations, like the European Union, North American Free Trade Area and Asia-Pacific Economic Cooperation, feel that they have nothing to do with political decision-making and that elections are really the rubberstamping of candidates chosen by factions in party machines. This alienation from politics is marked by a fall in the vote where it is not compulsory to vote, particularly at national levels. One of the reasons for this alienation - and this is what makes Switzerland a useful place for comparison - is that nearly all states now have highly multi-ethnic workforces and there is no longer any shared national collective memory. The traditional issues and the consequent notion of what the collective good should be has to be arrived at through multiple mediation as hundreds of ethnic language groups and social movements with transnational attachments (for example, environmentalists) negotiate in the debate necessary to reach consensus.The main problems that they face at the regional level are transnational: crime, the environment, information and so on. None of these is any longer solvable at a national or local level. So to meet the challenge of regionalism the notion of direct democracy is again on the agenda after two thousand years. Today, it uses the electronic townhall, seen not just as a pushbutton endorsement of elite proposals but as a notional place (an electronic agora, as the Italian version calls itself) for formulating just norms, drafting them and passing them.9 The object of such horizontal use of technologies is to reconstitute a 'fragmented popular sovereign' whose integrity is being increasingly threatened by polling and plebiscitary technologies. For example, where a politician knows what this or that segment of the electorate wants he or she can tailor the politician's response to it. The politician thus no longer represents the collective good in parliament; the essential notion of a representative democracy is lost. Thus, it is the deterioration of traditional representative democracy's capacity to guarantee control 'from below' by the 'popular
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sovereign' because of the effectiveness of polling and other media technologies which is prompting a renewed discussion of 'direct democracy', as we have defined it. This can only be conceived of through use of the electronic townhall of computers and data. That technology certainly exists today in advanced societies. Writing about this, Rodota states: The Network Nation, which only seemed possible in the sphere of Computopia, is throwing down a real challenge today, primarily in Japan, which has set the target date of 2015, and also the United States which wishes to bring forward the advent of their Electronic Highways to the beginning of the new millennium. And today there are already many experiences, mainly in production, which can offer models that can be used for this policy. The aim is to enable individuals, separated by place and time, to work together, giving them the possibility to work things out jointiy and, if necessary, to set up a structure which will become permanent. Having identified the technical conditions in software packages for personal computers, backed by the use of networks, Paola Manacorda describes the possible process in the following words: Let us suppose that a citizens' association wishes to advance a proposal for a referendum in their own municipality, which is permitted under the by-laws of towns in question. Those who first launched the idea can disseminate it to other members by personal computer linked to a network (for example, using a closed electronic mail system) asking everyone to express their views, with comments, additions or other remarks. This can be done using a conferencing system in which everyone can reply, send out messages, comments, additions and other remarks using their network-linked personal computers. Everyone taking part in the conference has the possibility of seeing on their own video all these 'interventions' which can be named or anonymous, at the discretion of those concerned. Once the sponsors know that the initial proposal enjoys broad acceptance, an initial draft proposal can be framed which everyone else will then be able to see on their videos. Using a co-authoring technique, the initial draft can appear on one side of the screen, with amendments or additions sent in by the other 'co-authors' on the other half of the screen. The drafters of the original proposal can either accept or reject the amendments proposed, and insert them into the draft or not. The whole process is highly transparent because it appears on the screens of everyone who is taking part in this kind of remote meeting, held at a time which suits everyone. If the sponsors have options to submit to those taking part in the meeting they can put them to the electronic vote which will always take place by personal computer, giving the reasons for the vote if so required. Once the sponsors feel that the draft is in its final form, it can be put to the final vote by the others who have also taken part in framing it in a much more collective and convenient way than attending a great many meetings in person.10
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The effect of such procedures would be a weakening of traditional party politics as it might lead to issue-based coalitions and certainly would threaten agenda set from above by experts. Clearly, it is also easier to envisage at local than at national levels, although its value would be greatest at regional and transnational levels (for example, in the European Union) where public and coalitions cross boundaries and borders. In Germany and Italy the problems of communication about sausage-making posed by languages are easily overcome. 11 If the party system is threatened, so is that of the administration, which is basically by-passed once it no longer has a monopoly of information. These benefits are offset by some negative consequences. Decisionmaking would slow down and be rather expensive because of the cost of computers and data. However, since the principle of democracy is not the data-informed decision but the recognition that all people should have a say about what is the collective good, that aspect should not be too disconcerting. It is important to make clear that, by 1988 when the issue of the vote was addressed directly before proposed alterations to the Australian Constitution, all the general principles enumerated in this prologue were accepted by the advisers to the government. Thus it was stated: Democracy is a political system in which the will of the people is sovereign. In any representative democracy democratic rights should enjoy a privileged status. Their existence is of itself a guarantee of other rights that we value. They are significant in determining the individual's ability to participate in the political process and ultimately in shaping every form of political activity in our nation.12 The absolute centrality of one person, one vote, one value was asserted on the ground that legislatures represent people, 'not trees, acres, factories, e t c ' This alluded to the well-known fact that the equal vote did not exist in Australia, either in fact or as a right at that time. Indeed, it was accepted that 'active' voting rights required the structures and procedures alluded to in this prologue as these words indicated: one vote one value is a fundamental principle of democracy. There can be no valid classification of people or electors in a way that abridges the right of equal representation. Any attempt, however well-intentioned, to weight the vote in one electoral division against that in another, for reasons of economic or geographical interest, contradicts the ideals of democracy. It is an error, in our view, founded on a mistaken understanding of the nature and purpose of representative government.13 Australian practice was seen to be glaringly remiss ever since Federation. In 1986 in Western Australia, Queensland and Tasmania the
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variation in value of a vote was as high as eleven, even in the lower house. 14 Indeed, matters were not entirely satisfactory at the federal level. After using the David Eisenberg, Gini and Dauer-Kelsay measures of malapportionment, the inquiry into One Vote, One Value of 1987 found a variation for the Senate of up to 11.82 using the David Eisenberg measure. 15
CHAPTER 7
The Active Citizen and Direct Democracy in Australia
This is the most important question probably that we have to consider in this bill. I think that there can be no doubt whatever that a clear case can be made for the absolute necessity of giving only one vote to each man, and giving every man a right to vote on the question of returning representatives to the central parliament. Sir George Grey, New Tjealand delegate to the 1891
Convention
We believe one vote one value is an essential principle of democracy. It is fundamental to a sense of meaningful participation in Australia's democratic polity. Constitutional Commission, 1988
It is important to state at the outset that there is practically no evidence that the fathers of the Australian Commonwealth Constitution had any intention of making the people sovereign through the principle of one person, one vote - and what concern they did show was replaced more and more by a concern for technicalities at each succeeding Constitutional Convention of the 1890s. This reluctance to deal with the problem reflected the absence of a popular movement for Federation here, and the fact that it was finally voted in by a minority of the population.1 At the first meeting of delegates at the Australasian Federal Conference in Melbourne in 1890, Sir Henry Parkes, the deus ex machina of the federal movement, noted that: 'We are asked to decide whether there is such a wave of popular opinion throughout these colonies that it has removed the question [that is, of Federation] from the mere sentimental airiness in which it has existed for some years past and has brought it into the region of practical polities'. Thomas Playford replied with the curt but historically correct assertion that there was no popular movement in favour of Federation. It was not a great reform sprung from the 223
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people, but a creation of colonial statesmen. Thus, whereas in the United States: 'They fought for liberty and gained it', as was the case in other federations, in Australia 'we have to build up, and build up slowly and carefully, a public opinion in the colonies, without being able to appeal to any catastrophe that might occur through war'. 2 In sum, the movement for Federation was not a popular movement either in inspiration or in practice, either at the beginning or the end. 'The great mass of the people remain quiescent as to the question.' The absence of a 'national struggle for liberation' from external forces meant that no reference was made to the contemporary literature in that area, even by the statesmen in favour of Federation. Though the ideas of Jean-Jacques Rousseau came, through Thomas Paine and others, into the consideration of the North Americans, there was no reference even to such dated views at the Conventions of the 1890s in Australia. At most, Alfred Deakin and others saw the proposed Federation as an education in democracy: 'All that is possible for this Conference or Convention to do is to present the Australian people a means by which they can, if they so please, transform themselves and their separate segments into a great nation'. He proposed in consequence that the Constitution should be subject to revision in accord with the people's changing wishes.3 It was at this point that the issue of popular sovereignty arose. As it was clear that the people were not sovereign in the British system of responsible government, advocates of the former had to find their authority in the United States and argue its appropriateness as a guide. Deakin relied on Bryce to suggest that what was growing in favour in the new and old world was the practice of obtaining 'not only an indirect verdict of the people at general elections [but a] direct verdict of the people in matter submitted to them'. This trend was particularly evident in the United States. However, the decision of the 1890 meeting not to go into details meant that further discussion of the relevance of the United States' experience was delayed until the first Convention in 1891. At this Convention the United States' model was expressly used in the article on the election to the 'house of representatives'. It was to be composed of members chosen by the people of the several States according to their respective numbers. The members were 'to be elected every three years until Parliament provided otherwise'. Each State would have one representative for every 30 000 of its people. The one reservation was the threshold allowance which allowed a colony to have a minimum of four members while its population was under 120 000. On the meaning of the section there was little debate. Why, Sir Richard Chaffey Baker (of South Australia) asked, had the American system been adopted? Sir Samuel Griffith reminded his listeners that the United States' section that
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corresponded to s. 25 (now s. 24) which stated that electors would be qualified by their right to vote in elections 'for the more numerous house of the State' rested on the fact that the drafting committee knew that the Americans 'were a democratic people, who did not fear to let the States fix their own electoral qualifications'. This provoked the retort that it could exclude manhood suffrage in several Australian colonies and John Cockburn of South Australia moved that 'the principle of manhood suffrage, and also the principle of one man, one vote, be embodied in the Constitution'.4 The only delegate to support Cockburn was Sir George Grey from New Zealand, which had made clear that it would not join the Federation anyway and therefore Sir George's support was of little political weight. Sir George identified what was at issue as 'the most important question' of the bill and argued that the position of Great Britain was that 'we shall establish a Constitution in which one man shall have one vote'. This could not be achieved by making the qualifications which already existed in the colonies the criteria for electoral rights in the new policy.5 Sir George Grey's contribution is important only because of the vehemence with which his view of the 'most important question' was rejected. Practical politics stood in the way, as John Downer pointed out. Cockburn's amendment was therefore replaced in order by that of Edmund Barton, who argued that it was a matter of temporary convenience to leave matters to the States and that it would be reconsidered by the Commonwealth. 'Surely it is not contended that in the course of time it will not be a wise and necessary thing that the franchise of every citizen of Australia to the national house shall be an equal franchise.'6 Though Sir George Grey warned that later alterations had seldom been made in history (and in this he was quite correct)7 - because those who had to alter were themselves not democratically elected - both Barton's 'pious hope' motion and Cockburn's watered-down amendment were lost.8 If a study of the debates at the first Convention (the most important as the Constitution was mainly drafted there in 1891) would provide no joy for those seeking to find an intention to introduce one man, one vote by the delegates, the position was even worse at the succeeding Conventions in 1897 and 1898. There, ss. 7, 24 and 41 were discussed only in relation to technicalities and not to the implications of the total identity of s. 24 with the relevant section of the United States' Constitution. This was despite the fact that it had been generally accepted that the Constitution would have to be popularly endorsed at referenda, a motion lost at the 1891 Convention - the most 'radical'. 9The only issue discussed at length was the quota. Lengthy, confusing, and somewhat inconclusive decisions about the relationship between the number of voters and the
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number of members dominated the debate at Adelaide, culminating in approximately the current formula in s. 30 which then ran: 'Until the Parliament otherwise provides, the qualification of members of the House of Representatives shall be in each State that which is prescribed by the law of the State as the qualification of electors for the more numerous House of Parliament in the State. But in choosing such members each elector shall have only one vote'. 10 Cockburn's attempt to resuscitate the one man, one vote debate was dismissed and what is now s. 24 was quickly carried. Thereafter the issue was virtually closed. We must conclude that little would be gained by reading the historical documents here, as they revealed no intention to establish the principle of one man, one vote and much less one person, one vote. An Australian court is hampered by the fact that the Federation was never intended to be a real democracy and it cannot point to democracy as what will save individuals from state tyranny. In sum, dealing with the issue of one vote, one value as the core right of a democratic citizen, the founding fathers made it quite clear that they had no intention of including it in the Constitution. Several speakers made clear that since one man, one vote did not exist in all the colonies it should not be in the new Constitution. They also made clear that the result would not only deny 'democracy in its purest form' but ensure that no change would be made to the malapportioned system which would ensue. As Sir George Grey put it: 'by introducing one man, one vote, the only privilege taken away from the States would be "the right of the minority to oppress the majority"'. Sir John Downer, whose colony had adopted the principle, argued that: 'admitting that one man one vote is a proper principle, we cannot shut our eyes to the fact that the infinitely larger part of Australia does not look at the principle in that way and does not adopt that view at all'. The Federation itself might not be created if 'principle' were insisted on. The decision was therefore to leave the electoral laws as those of the States, which were malapportioned, until such time as the new parliament decided otherwise. When Barton suggested that as a solution, Sir George retorted tartly that a parliament elected on such a basis would never give that right back to the people: 'They say, "We will grant it to you". Who will grant it to us? Those who have kept it from us for so long'. 11 In fact, once in power and after the first franchise and electoral Acts had been passed in 1902-3, the parliaments never saw fit to change the malapportionments which existed until the return of the Whitlam government in 1972. There were redistributions in 1906, 1912, 1922, 1934, 1948 and 1955 which confirmed Sir George's fears that the refusal to entrench the right to one person, one vote, one value in the Constitution would make that almost impossible to achieve thereafter. 12 This
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failure to meet the basic norm became alarming after 1945 when it placed Australia in breach of several of the international Conventions it signed, particularly the 1966 United Nations' International Convention on Civil and Political Rights. But it had already been the object of much anguish here in 1959. A Joint Committee on constitutional review recommended that s. 29 of the Constitution be altered to require electoral divisions of approximately equal numbers of voters - with a maximum variation of + or - 10 per cent - with reviews at least every ten years to cope with population changes. Both major parties were complicit in refusing this. Whitlam recalls that: The proposals for NSW [in 1962], the first State proposals on which the House of Representatives was to vote, also entailed the abolition of the divisions of Gwydir, held by the Country Party, and Watson and Dalley, held by the ALP, and the creation of new divisions at Cronulla and Ryde. McEwen, to preserve one of his followers, and Calwell, to pacify two of his, conspired to reject the redistribution. To my shame Calwell invited me round to take the ALP Federal Secretary, Chamberlain, over to McEwen's room to consummate the deal. Menzies thereupon abandoned the distribution proposals for all States. By 1966, the number of electors in NSW seats varied from 34 190 in Grayndler to 96 724 in Mitchell. Populations varied from 62 240 in East Sydney to 207 758 in Werriwa. The ALP would not have lost as many seats in the 1963 and 1966 elections and would have won more seats in the 1969 elections if they had been held on the boundaries proposed in 1962.13 Later the ALP, mindful of the adverse affects such malapportionment had on its chances of electoral success, became particularly vociferous in demanding reform. It is interesting to read the young Gough Whitlam, addressing the problem in 1955: By Parliamentary Government we do not mean government by Parliament, but that the government is responsible to parliament and that parliament is representative of the people. Parliamentary government requires three things: Firstly, that the people be equally represented; secondly, that the people have the power to choose their parliament at regular intervals; thirdly, that the government face parliament at regular intervals. He went on to say that there was no country which called itself a democracy where 'Parliamentary government is so ineffective as in the Australian States to express the wishes of the majority or preserve rights of minorities'. He claimed one vote, one value should be entrenched as a right and deplored a federalism which left the last say in the hands of judges: 'we run the risk that we shall be granted only such liberties as commend themselves to lawyers'.14 Twenty years later such assumptions
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contributed to his dismissal as Prime Minister. ALP bills usually failed, but Whitlam kept up the pressure by referring to the decision in Wesberry (discussed below). In 1964, 1968 and 1971 the proposals were not allowed to be voted on in parliament. Whitlam made electoral reform most important when the ALP was returned to government in 1972. Changes were completed at joint sittings in 1974. Yet bills for the reform of boundaries were blocked in the Senate, which was controlled by the Opposition. He was even more chagrined by the rejection at the referendum in 1974 of a proposal to reform the Constitution to guarantee one vote, one value. Only 47.23 per cent of the electorate voted for the proposal and only in New South Wales was there a majority. When its outrageous nature had become a cause for scandal, except in Western Australia and Queensland, all the States and the Commonwealth, starting with South Australia, introduced legislation in the 1970s and 1980s which established one vote one value for the lower houses, and in some cases the upper houses. The malapportionment in the two recalcitrant States is only really being rectified by the 1990s. The Commonwealth Act was amended in 1984 to ensure that a + or - 10 per cent tolerance was all that was acceptable in elections for the House of Representatives. The maximum amount of time between redistributions is seven years. It is, however, crucial to remember, that 'these arrangements may be repealed by legislation'. 15 And the Commission added, where that was a possibility, it did not agree that those rights need not be entrenched in the Constitution, 'as implicit in this argument [is] ... that Federal and State parliaments will never seek to alter or erode existing voting rights'. 16 The Right to Vote In 1995 it was clear that the right to vote in Australia was still as it was when defined in the 1975 McKinlay case: Australians do not have a right to a vote of equal value which is the core of democracy. It is also clear that dissatisfaction with the rule explained challenges to it in the McGinty case in 1995 before the High Court. The rule in McKinlay does not meet either the international standards or international 'best practice' for the right to vote in a polity which claims to be a liberal democratic representative system. Writing in 1987 about their decision, the Advisory Committee on Individual and Democratic Rights stated: 'the single area of greatest concern which was expressed from all over Australia was that the Constitution should stipulate as a basic standard "one vote, one value"'. It recommended alterations to the Constitution to guarantee this right at both State and Commonwealth level. The
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Commission itself stated in 1988, after recommending that the right to one vote one value be established constitutionally in Australia, that it had not existed practically or in law at either State or Commonwealth level.17 The Commission also stated: 'We believe one vote one value is an essential principle of democracy. It is fundamental to a sense of meaningful participation in Australia's democratic polity'. At the referendum of 1988 the proposal was rejected by the highest margin in any referendum in Australian history, despite the many submissions - the 'overwhelming majority' of which had 'favoured the entrenchment of the right to vote in the Constitution on the ground that it is the essential prerequisite of democratic citizenship'. 18 Dreadful though this was for supporters of democracy, it is useful to recall the decision in McKinlay as a starting point for a discussion of a more positive outcome. What status the 'people' have vis-d-vis the members whom they elect was only decided in that case. More recently, the decision in that case was followed closely in Burke v. State of Western Australia.1^ In the McKinlay case voters challenged s. 19 and related sections of the Electoral Act (1918-75) on the grounds that they were invalid since the material words 'chosen by the people' required each electoral division within a State to contain the same number of people as far as practicable, or alternatively, the same number of electors as far as practicable. It was argued that the 10 per cent variation from the quota allowed by the legislation did not do this. The point at issue for our purposes was whether each vote should be of equal value in an election. The court held that the words of s. 24 did not comport the notion that each voter should have a vote of equal value with that of the next. In rejecting this proposition Chief Justice Barwick made the following statements: The problem which is ... presented to the Court is a matter of the legal construction of the Constitution of Australia, itself a legal document; an Act of the Imperial Parliament. The problem is not to be solved by resort to slogans or to political catch-cries or to vague and imprecise expressions of political philosophy. The question of the validity of an Act of Parliament, namely, the Electoral Act, is to be decided by the meaning of the relevant text of the Constitution having regard to the historical setting in which the Constitution was created and the terms and operations of the Act in respect to the subject matter which, upon that construction, is committed by the Constitution to the Parliament. The only true guide and the qnly course which can produce stability in constitutional law is to read the language of the Constitution itself, no doubt generously and not pedantically, but as a whole: to find its meaning by legal reasoning. I respectfully agree with Sir Owen Dixon's opinion that 'there is no other safe guide to judicial decisions, in great conflicts than a strict and complete legalism'. In case of ambiguity or lack of certainty, resort can be had to the history of the colonies, particularly in the period of and immediately preceding the development of the
230
THE ACTIVE CITIZEN AND BEYOND
terms of the Constitution. But it is settled doctrine in Australia that the records of the discussion in the Conventions and in the legislatures of the colonies will not be used as an aid to the construction of the Constitution.20
Thus, while impelled by the logic of legalism to recognise that nothing could be done in the courts about legislated inequities and to give away with one hand the task of defending civil liberties to a non-legal political realm, with the other hand the courts took back what they had given by stating that voters' rights were a legal matter which had nothing to do with 'political philosophy'. Again the judiciary stated that it was impelled thereto by its own rules or 'settled doctrine'. Barwick then stated that as s. 7 gave an unequal number of voters the right to elect equal numbers of senators, the words could not mean that votes should be of equal value. The words in s. 7 referred to the 'people of each State', something not to be confused with the total population or even with 'adult suffrage'. He then stated that such reasoning about s. 7 was 'equally applicable to s. 24'. Furthermore, s. 29 of the Constitution expressly left it to the States to decide their electoral boundaries and these were drawn differently without reference to the notion of practical equality. Justices McTiernan and Jacobs adopted a similar approach. 'People' did not mean 'electors', whose numbers could vary. This variation 'was a matter of degree' which depended on the common understanding at any particular time.21 Following such legalism, Justice Gibbs said simply: 'the section says nothing in terms as to the weight to be given to the votes of the people who cast them'.22 Justice Stephen concurred while adding that: To contend that the presence of what is described as 'near as practical equality of numbers' within electoral divisions is essential to representative democracy, to a legislature 'chosen by the people', is to deny proper meaning to language and to ignore long chapters in the evolution of democratic institutions both in this country and overseas, in which, representative democracy having been attained, its details have undergone frequent changes in response to community processes but have failed to possess this feature of equality of numbers on which the plaintiffs now insist.23
The absence of normative reference consequent on the confusion of quantitative representative with qualitative responsible government was matched by the reverse views in the only dissenting judgment, that of Justice Murphy. Having correctly identified that what was at issue was 'whether the Australian Constitution guarantees electoral democracy', Murphy took an uncompromisingly normative position. Section 24 was 'imperative', unlike earlier formulations in the Bill of Rights (1689) or
DIRECT DEMOCRACY IN AUSTRALIA
231
the Virginia Declaration (1776). The section commanded equality of voting value. To understand it otherwise would be to make the Constitution a blank paper by construction and ignore the earlier commentary on it which stated that it embodied the prevalence of the democratic principle in its modern guise.24 The decision was reached by following the legalism which Chief Justice Barwick saw as binding and in defiance of the United States Supreme Court's decisions on the identical section of the United States Constitution, which the Commonwealth Constitution copied. All the judges except Murphy simply dismissed the United States' cases as not even persuasive. Barwick simply asserted the radical differences between the two documents, relying inconsistently on the different histories which he typified as a negation and an affirmation of British traditions of parliamentary sovereignty and ministerial responsibility.25 'In my opinion, in the construction of the Constitution of Australia, decisions of the Supreme Court upon the Constitution of the United States are frequently inapt, and none more so, in my opinion, than the decisions of the Supreme Court on Article I.' 26 In the Burke case McKinlay was found highly persuasive in interpreting s. 73(2) of the Constitution Act (WA) (1889-1980) whose material words were that parliament should be 'composed of members directly chosen by the people'. Justice Burt quoted Barwick's dismissal of political slogans, and applied a natural reading. Justice Smith even quoted with approval Justice Mason's statement of McKinlay that the words would be satisfied even if there were 'some or ... a marked variation in the number of persons or electors in the electoral divisions within the State'. 27 The refusal to follow the line of decision in the United States was determining the construction given to s. 24, which allowed here classes of voters with unequal voting value; thus making it impossible for the legislature to be only the expression of the popular will. It is thus interesting to compare the mode of reasoning in those cases with that adopted in Australia. The first in a series of important cases was Baker v. Carr which involved a redistribution of the Tennessee State House electoral boundaries. The Supreme Court was asked to decide inter alia whether Article 1 (2) of the United States' Constitution applied and whether the Supreme Court had jurisdiction, given the power initially attributed to the States to decide their own boundaries. The court overruled earlier decisions to reply affirmatively to both questions. It also held that the States did not have the right to avoid the one man one vote principle. The two dissenting judges, Frankfurter and Harlan, both followed reasoning like that of Judge Stephen in McKinlay.28 This assertion of jurisdiction meant that the United States Supreme Court was seized on the matter of voting rights in Wesberryv. Sanders, the
232
THE ACTIVE CITIZEN AND BEYOND
leading case of gerrymanders in the United States. Justice Black delivered the judgment of the court, with Justice Harlan again dissenting. Following Baker and Marbury v. Madison to assert jurisdiction in and justiciability of the matter, Black argued that 'construed in its historical context' the material words (which are identical with those of s. 24), meant 'as nearly as practicable, one man's vote in a congressional election is to be worth as much as another'. He continued: We do not believe that the Framers of the Constitution intended to permit the same vote-diluting discrimination to be accomplished through the device of districts containing widely varied numbers of inhabitants. To say that a vote is worth more in one district than in another would not only run counter to our fundamental ideas of democratic government, it would cast aside the principle of a House of Representatives 'elected by the People', a principle tenaciously fought for and established at the Constitutional Convention.
Here Justice Black turned to that history as revealed in delegates' speeches - precisely what the Australian judges precluded, that is, the history of the intentions of the drafters of the Constitution. Thus, James Madison entreated the Convention: 'to renounce a principle which was confessedly unjust'. As against Justice Frankfurter's hardheaded realism in referring to the history of the franchise in Great Britain, he stressed the opinion of delegates that it was a 'vicious system', to conclude that to continue such Old Sarum gerrymanders would be 'objectionable action'. Black's judgment was summed up in words he quoted from the Federalist, no. 57: 'Who are to be the electors of the Federal Representatives? Not the rich more than the poor; not the learned more than the ignorant; not the haughty heirs of distinguished names more than the humble sons of obscure and unpropitious fortune. The electors are to be the great body of the people of the United States'. Readers could have surely taken this to mean 'one person, one vote'.29 The dissenting judges, Harlan and Clark, both also turned to the historical record arguing that it did not support Justice Black's conclusions and could not be relied on, and Harlan followed Justice Frankfurter's decision in the overruled Colegrove v. Green - that the matter being political should not be justiciable.30 The determined Justice Harlan again dissented when Wesberry was followed in Kirkpatrick\. Kreisler.31 This case established the test that a State was required in good faith to attempt to achieve precise mathematical equality and to justify any minimal disparities between voters' value. Relying on Justice Brennan's dictum in Reynold v. Sims that 'Neither history alone, nor economic or other sorts of group interests, are permissible factors in attempting to justify disparities from population based
DIRECT DEMOCRACY IN AUSTRALIA
233
representation. Citizens, not history or economic interests, cast votes', it adopted precisely the vague political philosophy which ChiefJustice Barwick had anathematised here. White v. Weiser affirmed the decision in KirkpatrickW The Popular Sovereign and Direct Democracy
Despite the variations which still existed in the 1980s, illustrated by figures 4 and 5 and tables 6 and 7, all constitutional measures suggested to rectify the situation since 1959 had been rejected. What were the implications for the 'popular sovereign'? Malapportionment had been practised systematically in all colonies and States since the first 1842 electoral laws in New South Wales. It was first used in rural electorates and then increasingly in urban electorates and sometimes prevented the 'people's choice' from being elected to parliament. As a result, 'power from below' was, and is, a farce in Australia even at federal level. It is important to note that the 'checks and balances' argument in favour of an upper house power to block lower house initiatives is only consistent with democracy if the upper house is democratically elected as well as the lower house. Since the Second World War, Australia has faced considerable embarrassment internationally because of this. (Before 1942 Australia had no international personality.) For example, as a signatory to the United Nations Declaration of Human Rights (1948) and the Convention on Civil and Political Rights (1966) (although only signed in 1980 by Australia), the government was obliged to derogate from the section guaranteeing democracy (Article 25). The argument was that in a federal polity under the existing division of powers, the Commonwealth could not guarantee 'one vote, one value' because of constitutional impediments.33 As this made clear, the Constitution itself was the source of the remarkably undemocratic nature of Australian electoral arrangements since Federation. Sections 7, 24 and 41 which were thought to make the people sovereign were not accompanied by unambiguous sections about electoral laws designed to give the right to a vote of equal value. Commenting on the McKinlay case, the Constitutional Commission of 1988 had this to say: 'the majority held that neither the Constitution's language nor its history required adherence to the principle of one vote, one value'.34 Clearly, such a right could only ever have meant an attempt to do so within reasonable limits (a 10 per cent variation is usually the measure proposed) in periodic revisions of electoral boundaries which take into account changes in concentration of population. Usually, the time lapse was not expected to be more than ten years. In Australia a
1UU
Western Australia 1927
/]
9080Line of equality
70-
/^^-^^
/
605040- _
/
" " " " " ~ 7 ^ ^ Lorenz curve^^
30-
22.37 20100 10
20
24
30
40
50
Number of seats Figure 4 The Gini index Note: The Gini index is calculated as the ratio of the shaded area between the line of equality and the Lorenz curve to the hatched triangular area to the right of the line of equality. The scale of the Gini index ranges from zero (000) for an equal electoral distribution to unity (1.000) for a malapportioned distribution where the distribution is so extreme that all electors are located in only one of the electoral districts. Source: C. A. Hughes, Handbook of Australian Politics and Government, 1965-1974, ANU
Press, Canberra, 1977, Appendix 1, p. 129.
20 per cent variation had been accepted up to 1974.35 Although legislation was passed in 1974 and 1983 which tended to reduce the anomalies at federal level, it was clear that only a constitutional amendment would make the equal vote a right, and make the 'people' sovereign. Sufficient has been said on this point to make clear that, at both State and federal level, the basic right of an active citizen has not existed since 1901, and until the Constitution is altered it is difficult to see how it will exist. In practice, there is legislation designed to eliminate the
DIRECT DEMOCRACY IN AUSTRALIA
235
Legislature Northern Territory LA 4 Tasmania LC 3 Tasmania LA 3 Western Australia LC 3 Western Australia LA 3 South Australia LA 2 Queensland LA 3 Victoria LC 2 Victoria LA 2 New South Wales LA 1 Senate 4 House of Representatives 4
Figure 5 The Dauer-Kelsay index for Australian legislatures. The Dauer-Kelsay index is the smallest percentage of the total enrolment contained in the electorates required to produce a majority in the legislature. It is calculated by listing electorates in ascending size of enrolment, then going up the list until a majority of electorates has been taken and calculating the enrolment totalled to that point as a percentage of the enrolment for the whole legislature. Note: 1 Data based on 1984 election 2 Data based on 1985 elections 3 Data based on 1986 elections 4 Data based on 1987 election 5 LA = Legislative Assembly; LC = Legislative Council Source: Australian Electoral Commission
discrepancies but it can be repealed; and since parliament could upset it, there can be no right entrenching the popular sovereign.36 Local Government
What is also striking in Australia is the complete absence of democratic rights at a local level. Local democracy did not exist in the colonies where centralisation and hostility towards local government had been characteristic, especially after the failure of projects of 1837-39. In the Commonwealth it did not exist either as a right or, in many cases, in practice, as we saw in chapter 2. In the 1930s the school of conservatives centred around F. Bland and the Journal of Public Administration fought for the development of local government here. It claimed that the wellknown political apathy of Australian 'citizens' was due to lack of participation in local decision-making.37 The conservatives' pleas went unheard in postwar Labor governments. Often the Labor policy choice
236
THE ACTIVE CITIZEN AND BEYOND
in favour of centralisation made such a devolution very difficult except as a dirigiste regionalism, which was typical of the Whitlam period (1972-75). Whenever there were proposals for decentralisation to return power to the base, they came to nothing. The proposal of the Constitutional Commission of 1988 that decentralisation be introduced argued: 'we have come to the conclusion that it is time for the recognition of local government as a third sphere of government in the Australian Constitution'. It pointed out how central it was in many aspects of local life: social security, the arts, town planning and the environment. Indeed, there were 836 local bodies with 8000 elected members, and 170 000 employees.38 But only in Victoria in 1979 was local government made part of that State's government by a Constitution. The ALP has always been lukewarm if not hostile. This may be due to the notion that federalism itself weakened popular sovereignty, and therefore centralisation under the right party would resolve Australia's democratic deficit. Even a young and radical Gareth Evans would do no more than canvas the pros and cons of local government. 39 Whitlam tended to be hostile to all decentralisation. 40 It is true that the Diceyian view of federalism, derived from the conservative reading of the United States theory and practice, emphasised that its object is to weaken central government. This was not the view of democratic federalists. They emphasised its capacity to empower the people by keeping local decisions close to the issues which concerned them. For example, Bland stated 'a federal system ... I mean one in which there are a series of partners, each supreme in its own field, and free from dictation by the Central Government'. 41 Another speaker stated: 'democracy involves not only the right of citizens to elect their representatives, but also the capacity of citizens to influence their representatives. That is made possible to some extent, under the federal system, much more possible, and much more probably, than under a system of unification'.42 Such a democratic understanding of local government and federalism approached the contemporary European notion of subsidiarity, where all decisions are taken at the lowest level possible. Regrettably, the rise of economic rationalists and managerial policies do not allow it to flourish and it was absent from debate about Australian federalism in the 1970s and 1980s. It is highly probable that the abolition of elected local government in Victoria contravenes several international covenants to which Australia is a signatory.43 Summed up, so far as traditional representative democracy is concerned Australia presents a sad picture after 1901 whether at local, State or federal level. While it is true that in recent decades legislation has sought to establish the principle of one vote, one value even in the formerly sinning States of Western Australia and Queensland, that
237
DIRECT DEMOCRACY IN AUSTRALIA Table 6
Electoral enrolments for State and Territory lower houses of parliament
Parliament
Date a
Lowest enrolment
Highest enrolment
Average enrolment
New South Wales
1986 1985 1986 1985 1986 1987
28 138 27 859 7 918 17 025 3 702 2 477
32 589 32 137 21608 21998 29 268 3 388
31 139 30 017 17 590 19 266 15 495 2 987
Victoria Queensland South Australia Western Australia Northern Territory Tasmania15 a
Date of last election, except for New South Wales where date of redistribution. b Data are not presented for Tasmania because Tasmania has multi-member electorates each returning five members to the Tasmanian Legislative Assembly. Source: Statistics Group, Department of the Parliamentary Library.
Note:
Table 7
Electoral enrolments for State upper houses of parliament
Parliament
Date a
Lowest enrolment
Victoria Western Australiab Tasmania0
1985 1986 1986
115 070 8 815 5 352
Highest enrolment 123 537 97 243 18 261
Average enrolment 120 067 51955 14 222
a
Date of last election. Two members for each electorate. Average based on single member. c Zoning is not used in Tasmania; however, redistributions are conducted at the discretion of the Legislative Council. Source: Statistics Group, Department of the Parliamentary Library.
Note:
b
legislation can be reversed if a constitutional amendment is not made. This will require much more than 'minimal' reform of the Constitution. Direct Democracy
When we turn to consider international 'best practice' concerning direct democracy, Australia continues to lag well behind. When the introduction of direct democracy was considered by the Commonwealth, the Northern Territory, the Australian Capital Territory and Western Australia, such proposals were always rejected.44 This is despite observations that indicate how particularly apt the technological advance of information highways make such notions in
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THE ACTIVE CITIZEN AND BEYOND
Australia. In the inquiry into One Vote, One Value it was claimed in one submission that: 'There is absolutely no justification in 1986, in the era of satellite, computerisation, information technology run rampant and in a situation where more than 90 per cent, probably 95 per cent, of all households are connected by telephone, to argue that anything like those sorts of weightings can be justified'. 45 The 'weighted vote' had been justified by the argument that the problems of distance and communication in the outback made it necessary for some malapportionment to exist. Indeed, when the electoral divisions under the Commonwealth Electoral Act (1902) were drawn, the commissioners had been instructed to take into account such factors. This was not so dubious an argument for weighting as that which maintained that the rural interest really corresponded with the national interest. Various committees engaged in proposals for electoral or constitutional reform in the late 1980s had considered the issue of 'citizeninitiated' legislation; this was closer to direct democratic procedures than anything else considered in Australian history. They made their recommendations against a history going back to the proposal in 1915 of the Queensland ALP for the Popular Initiative and Referendum bill. This was blocked in the Upper House and dropped. Similar measures were discussed in the House of Representatives in 1914 and also dropped. The idea was deleted from the ALP platform in 1963. The issue appears to have remained a non-event until Senator Mason raised it again in 1978 and introduced a private member's bill in the Senate, whose main thrust was to allow a petition of 250 000 signatures to initiate an Australia-wide referendum to be held for a proposed law, including a constitutional amendment. He reintroduced the bill in 1981 and 1982 but it was defeated. In 1983 a similar proposal was put to the Constitutional Convention and referred to its standing committee for discussion. In 1984 that proposal was defeated after extensive debate, and discussion by Professor Colin Hughes in his Commonwealth Constitution: Methods for Introducing Amendments and Senator Michael John Macklin's The Case for Popular Initiative. In 1985 the Queensland National Party proposed that direct democracy be adopted. In 1987 Professor Geoffrey de Q. Walker started the contemporary debate with his book Initiative and Referendum: The People's Law (Centre for Independent Studies). Professor Walker subsequently addressed the Senate on the issue of direct democracy.46 Walker proposed a direct legislative power to complement representative democracy. He believed that this would revitalise the popular sovereign, stating this as the premise of his work. In 1987 the Committee for Individual and Democratic Rights canvassed the matter carefully and ended by reporting that: 'a surprisingly wide range of political sentiment supported the introduction of a concept of referendums which can be
DIRECT DEMOCRACY IN AUSTRALIA
239
initiated by the petition of a specified number of voters. The process is commonly referred to as a "citizens' initiative" or "direct democracy".' It concluded by suggesting that constitutional amendment by referendum would be possible if 500 000 voters' signatures in support of the referendum were collected.47 It advised postponing the consideration of citizeninitiated legislation until after that of the constitutional amendment had been observed in action. However, when the Constitutional Commission later reported, despite increasing debate in parliament and an increasingly pro-stance by the Liberal Party, it advised against such innovations. In 1989 and 1990 there were still proposals for such bills coming from private members and put on notice. We will not discuss the State proposals in detail, except to note that when the matter was considered in the Northern Territory in 1991 the committee there refused to make a decision after canvassing the pros and cons and considering such procedures in Switzerland and the United States.48 Clearly, one reason for the failure of such proposals was the determined opposition of parliaments themselves. Often this took the form of advancing arguments which were historically presented against universal suffrage and later women's suffrage - the argument that the people whose lives are ruled by these laws are not knowledgeable enough to decide about what is best for them. This paternal attitude, and it is prevalent amongst most Parliamentarians, is overwhelmingly dismissed by the people it would affect. They see it for what it truly is - an argument for some type of dictatorship or oligarchy.49
This resistance highlights the need for any such right to be constitutionally enshrined. As we have shown, at the time of the Constitutional Conventions of the 1890s it was often argued that proposals for 'one vote, one value' did not have to be written into the Constitution as the parliamentarians would do so in legislation. Though warnings were sounded against such optimism about our representatives, such arguments carried the day and nothing was done for over seventy years.50 Again, in the newspaper debate on the issue, it was clear that the Liberals were more in favour of the proposals than were the Nationals, and in particular than the ALP, whose centralising views had grown surprisingly since the Whitlam years. In that period Senator Murphy had been instrumental in working for one vote, one value as a right which should be a matter of principle. Eventually, on the election of Alexander Downer as leader, the Liberals adopted the proposal for debate (25 July 1994). Peter Reith was a major source of inspiration in that debate as he had proposed in a Green paper of 1990 when he was Shadow
240
THE ACTIVE CITIZEN AND BEYOND
Attorney-General that such issues be canvassed. 51 Reith asserted that 49 per cent of submissions to the Constitutional Commission of 1986-87 had favoured citizen-initiated referenda. In 1994 when arguing in favour of the proposal, Reith argued that the Constitution was 'outmoded', and that 'Direct democracy enables that public to initiate and to make and repeal laws by referendum'. It would be embraced by all levels of government. It would encourage a more transparent political system by promoting public debate and would motivate public interest in political issues and reduce apathy. He favoured 250 000 signatures to trigger such referenda and suggested that, if held on the same day as elections, costs would be kept down. Clearly such procedures would be 'occasional' and subject both to scrutiny by parliament and the Federal Court. Critics like Laurie Oakes and Malcolm Mackerras pointed to the harmful experience of California's Proposition 13, where a citizens' initiative proposal resulted in the state being deprived of the money needed for government. While such criticisms appear telling at first sight, they ignore the definition of 'direct democracy' we have used, which, if observed, would counter the fears of 'push button' democracy. The Nationals' fear of losing power was completely selfish. Nevertheless, combined, the criticism of such citizens resulted in a declaration from Downer that the proposals were 'impracticable'. 52 Such capitulation was, however, less alarming than Keating's claim that direct democracy was 'zany' and that the real constitutional problem in Australia was that of the head of state not being an Australian. Senator Cheryl Kernot's typification of this as a 'pathetic elitist view' had some force. 53 In all this debate there does not appear to be any reference to the use of the new technology to enable a revivification of democratic debate. Careful research revealed nothing of that sort though it is crucial both as a technique and to counter allegations that popular opinion could be manipulated by media control a la Ross Perot. Certainly, the experience in the United States so far is quite inconclusive about the results of such techniques. It is also true that the Swiss example poses problems given the traditions and distances in that country. Responsible Government The object of the equal vote was to secure power 'from below'. In a system of representative government like that of Australia this required absolute responsibility of the elected representatives to those who had elected them. This would be essential even were there to be no malapportionment in Australia. Unfortunately, despite claims that Australia has a Westminster system of responsible government, this is not
DIRECT DEMOCRACY IN AUSTRALIA
241
established by the Constitution, and in practice the mechanisms the Constitution has set up has allowed politicians to ignore the sovereign citizens who elect them. This was made completely clear by the events of 11 November 1975, when the Governor-General, Sir John Kerr, dismissed the legally elected government of Gough Whitlam, allowing elections on 13 December, at which the Liberal/Country Party coalition was returned by a massive majority. Since, in a Westminster system the Executive can only act on the advice of the government, which certainly did not advise its own dismissal, it appeared a flagrant breach of the notion of responsibility. The occasion was the attempt of the Labor government to raise money in novel ways after the Liberal/Country Party Senate had refused to pass the bill for Supply using powers it had under s. 53 of the Constitution which reads inter alia: 'The Senate may at any stage return to the House of Representatives any proposed law which the Senate may not amend, requesting, by message, the omission or amendment of any items or provisions therein5. If this action were taken twice by the Senate, which, we recall, was not the democratic house, and in the British system could not hold up such legislation, then under s. 57 the Governor-General could resolve the deadlock by forcing a double dissolution and an election. This clearly conflicted with the Westminster system and its conventions. The issue thus posed in 1975 was: which would be paramount - the Constitution or the conventions? Clearly the Constitution did not establish responsible government in the traditional sense, and conflicted with the convention that the majority chosen by the people at free elections would form a government and govern untrammelled in its power while it could secure support from the lower house. It also conflicted with convention that the monarch could only act on the advice of the government. Writing about this, Gareth Evans stated: Indeed, if the literal language of the Constitution were to be believed, the Governor-General had all the status and power of an Ottoman Sultan. He could, for example, dismiss at will both the Parliaments (s. 5) and Ministers (s. 64), refuse to appoint any Ministers at all (s. 64), allow Parliament to meet but one day a year (s. 5) and not spend any money when it did (s. 56), and take over the personal control, as commander-in-chief, of the army, navy and airforce (s. 68) .54
Or, in Donald Home's words: The present constitution is not expressed in democratic terms. It is expressed in monarchic terms. Almost all power is presented as derived from
242
THE ACTIVE CITIZEN AND BEYOND
the monarch. There is no mention of a prime minister. Nor of a cabinet. Nor of the need for a government to maintain a majority of votes in the House of Representatives. Nor of the right of all citizens to vote. The Queen and the Governor-General are presented as lawmakers as important as the House of Representatives and the Senate. They are both given power to veto laws passed by the two houses of parliament. The Governor-General is also given the exclusive power to summon or suspend Parliament and he may dissolve the House of Representatives as he thinks fit.55
What is important is that the powers in the Constitution were regarded as overriding convention. They were legal powers and, as Kerr himself said: 'The Constitution must prevail over any convention because, in determining the question of how far the conventions of the constitution have been grafted onto the federal compact, the Constitution must
itself in the end control the situation'.56 To this day, that remains the case. In a worst-case scenario, read legally: 'the literal statements of the Constitution provide for a style of government that might best be described as a Latin-American type dictatorship. The Governor-General could legally set himself up as a despot'.57 When this reality became quite clear in the aftermath of the 1975 crisis, it was natural that commentators should argue that the traditions of this country and the practice of its representative systems would make this very unlikely. However, when they turned to the little-studied history of those institutions it became clear that bitter disputes between houses had been 'a recurrent theme' in colonial and State history. In each case the Governors had acted against the elected majority in the house, that is, acted without advice, ending any claim to power 'from below'. This was so in New South Wales in 1858, in Queensland and Victoria in the 1860s, again in Victoria in 1877 and in New South Wales in 1932.58 Since the bulk of these crises ante-dated the formation of the Labor Party, they could not be reduced merely to anti-Labor feeling in upper houses or appointed Governors. Rather, each time the Governors pointed to their legal obligation to disregard the will of the elected majority if they thought that majority was 'breaking the law'. It was then sometimes argued that even if that were the case in the history of the colonies, the founding fathers of Federation could not possibly have intended to set up an oriental despotism in Australia but rather were intent on recreating, despite the legal ambiguities, a Westminster system. Moreover, it was argued that without this intention it is difficult to see how the Constitution ever could have worked since the Senate would have been able to conduct a continuous running battle against the elected government, preventing all efficient government. Unfortunately, it is clear that the creators of the Constitution realised that in giving the Senate the powers it had, the Constitution, in fact, deprived
Innovation in representational arrangements: lower houses
Table 8
Compulsory First election registration with compulsory of voters voting
Manhood suffrage
Adult suffrage11
Abolition of plural voting
Secret ballot
Payment of members
United Kingdom
1918
1928
1948
1872
1911
-
-
-
New South Wales Victoria Queensland South Australia Western Australia Tasmania
1858 1857 1859 1856 1907 1901
1902 1909 1905 1894 1907e 1903
1894 1899 1905 Never existed 1907 1901
1858 1856 1859 1856 1877* 1858
1889 1870 1886 1887 1900 1890
1921 1923 1914 -
1919 1930
1930 1927 1915 1944 1939 1931
1926b 1911c 1892d 1929 1907g PR 1907*
Commonwealth
1901
1902*
Never existed
1901
1901
1911
1925
1918
Parliament
Notes:
a
Preferential voting
That is, votes for women. But note that some States did not enfranchise indigent inmates of State charitable institutions at dates given in first two columns (for example, such people in Queensland did not all attain State franchise until 1915). New South Wales experimented with the second ballot for a few years from 1910 and with proportional representation between 1918-26 but abandoned each in turn. c In 1915 optional was replaced by compulsory preferential voting. d This was a form of optional contingent voting; preferential voting was abandoned in 1942 in favour of a reversion to first past the post. In 1962 the Anti-Labor State Government restored preferential voting. e Western Australia gave some women the vote in 1899 on the same restricted franchise then applying to men. f This was for the elective element of the old Legislative Council of the years before self-government. gThis was a form of optional contingent voting, replaced in 1911 by the obligatory preferential form. h Proportional representation (PR) was introduced in 1896 for the Hobart.and Launceston metropolitan areas only: in 1907 it was made general for the State. T h e Constitution provided that at the (initial) federal election of 1901 the franchise was to be that in operation at the time for the lower house in each State: this meant that in 1901 women generally in South Australia and some women in Western Australia had a vote for the first Commonwealth Parliament, which in turn legislated for complete adult suffrage for subsequent federal elections. Source: L. Crisp, Australian National Government (Longman, Melbourne 1965, p. 114). b
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Australia of responsible government, without which it is not much use talking of a democracy. Brian Galligan pointed out that the colonial delegates to the various federal Conventions were aware that responsible government and the federal bicameral system they set up were 'theoretically incompatible' and, while fearing that deadlocks were likely to cause revolution, preferred the pious hope that 'good sense' would prevail.59 More harshly, but in my opinion more accurately depicting majority views, Kelvin Rowley argues that they deliberately set up a Constitution which would 'protect their privileges, wealth and power from the irresponsible attacks of the "excitable" masses'. 60 What was made clear in 1975 and in the debate about its meaning was that power 'from below' is not guaranteed by the existing mechanisms of the Constitution, which give an undemocratic Senate and an unelected Governor-General, acting together, power to override the elected representatives of the people. Even with one vote one value, the people would have to be sovereign for Australia to be a democracy. This provoked much soul searching in meetings, debates and Conventions in the ten years after 1975. Recommendations emanating from a Convention in Brisbane in 1985 were endorsed by the Constitutional Commission of 1988. The thrust of these recommendations was clear. It was to overcome the aberrant powers of the Senate and the Governor-General by new rules which brought Australia into line with the ideals of the Westminster system of responsible government. The first proposal was to endeavour to democratise the Senate by making senators represent an approximately equal number of electors. 61 Strict equality was clearly impossible given the States' rights understanding of the Senate, which still existed in defiance of political realities. Senators voted along party and not State lines. It was hoped that by timing elections differently and by giving the Prime Minister overriding power on when to call elections, this vestige of oligarchy would be minimised. This more democratic Senate would then have its powers truncated to ensure the sovereignty of the people through the House of Representatives. Section 57 should, the Constitutional Commission advised, not apply to Supply bills, and only be exercisable anyway in the last year of a term of government. 62 Moreover, it recommended that s. 57 only be exercisable on Prime Ministerial advice and thus would end the GovernorGeneral's 'personal' discretion to appoint and dismiss the Prime Minister and dissolve parliament. While it did not propose to completely remove the 'reserve powers' to act without advice, it insisted that a dismissal should only be 'for persisting in grossly unlawful or illegal conduct, including a breach of the Constitution', and then only when the High Court had decided to that effect or there was no alternative. 63 Unfortunately, none of these proposals were approved at referendum,
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and, if the pattern of that in 1988 were repeated, might not get the required support today. The result was that in 1995 the Constitution remained what it was, and power 'from below' is still not guaranteed constitutionally in Australia. Legally, the dismissal of 1975 could be repeated and some commentators still say it would be justified. The Inactive Citizen Given this lack of popular sovereignty, it is not surprising that the interest and confidence of Australian citizens in liberal-democracy is as reduced as it is. It is clear that where liberal-democracy is concerned there exists neither trust, nor the belief that parliament is representative of the people, even if it is regarded as effective.64 This absence has been hidden by the system of compulsory voting which exists only in Australia, Belgium and Venezuela. It was introduced in the fashion shown by table 8 precisely because only 58 per cent of citizens were voting by the 1922 elections, a rapid fall since Federation. Thereafter, over 90 per cent of citizens voted, creating the impression of a highly active democracy. When compulsory voting was introduced it was the object of little debate. The main supporting reason was that it would make for administrative ease in keeping electoral rolls, but on occasion it was argued that the citizens would be forced to learn their democratic duty through compulsory participation. As we saw earlier, this was also Bryce's opinion. However, it was undermined by later argument which pointed out how inconsistent it was with the notion of the autonomous ethical being deciding on the collective good in a debate. It confused democracy with the mindless casting of a paper into a ballot box. F. Bland again foreshadowed later theorists when he wrote: 'compulsory voting disregards one basic principle of liberty: that man can only be his best self if he is free to reject the pressure of authority to compel him to act in a manner deemed best for him by authority'. For, as he continued, the primary object of all institutions of parliamentary government was 'the creation of conditions that will enable people to develop their personality and to foster their own moral values' and to do this we needed 'to be able to choose freely the kind of lives we wish to live'. 65 Later, it would be clear that the population had unlearnt those points, 67 per cent approved of the compulsory vote in 1987. Most migrants did not. 66 The real mark of popular disillusion with the parliamentary process has been the emergence of new social movements. In 1995 these were so powerful in galvanising support for the environment, for women, against war and so on, that the major parties are obliged to consider their effect on the vote. However, from the point of view of citizenship, their impact is not uncontradictory. Moreover, they do not seem to have many
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avenues for increased democratic participation within a dominant representative system. The social movements tend to favour legal protest and peaceful methods and, since 1967, have become ever more conservative and right-wing when compared with their initial qualities. 67 Their choice to work within the system has meant that they have become vehicles for middle-class careerists, who, however, find little prospect of getting into parliament unless they defect to a major party.68 When this is the case, their role as new stimulators of democratic debate becomes mystifying. Had there been a network of local government for them to move into, then there would have been cause to be optimistic about their potential for active citizenship. As we have seen, despite the recommendation of the Constitutional Commission of 1988 that local government be recognised as 'the third sphere of government' that has not become fact. Overview Overall, at present Australia still does not meet requisite standards for democratic citizenship, whether we look at the fundamental active right, the equal vote, or how such power from below is translated into popular sovereignty. In the face of such facts, despite possible innovations before 2001, we must beware of this sort of assertion: Ever since the dramatic fall of President Marcos in the Philippines we have heard the term 'people power'. In fact it can be very aptly applied to Australia. What led to the creation of the Australian nation was truly people power. We are one of the few nations of the world that have for nearly 100 years lived under a Constitution that was first thrashed out over the years by citizens in debate throughout the nation and was then determined upon and adopted by the free vote of the people, the demos, at referendum. Hence my theme today, the 'Demotic Constitution'. What is more, a characteristic feature of the Commonwealth Constitution is the involvement of the people of Australia as an essential element in constitutional change. Section 128 of the Constitution requires amendments to be initiated by a Bill passed by the Commonwealth legislature. That done, the Bill must then be put to the electors and passed by a majority of electors voting overall and by a majority of electors voting in each of a majority of States. Only when these requirements have been met and assent obtained is the Constitution effectively amended.69 Such assertions tend to lull Australians, who have grown up in a socially egalitarian country of plenty, into thinking that the procedures for responsible liberal democracy exist here. They do not. This could become disastrous if Australia's standard of living continues to disimprove and citizens wish to have more say on how the scarce cake should be divided. Then they will be faced by parliaments and a
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state that they do not have the right to control. Conditions are worsening quickly. Between 1981-90 there has been an 80.5 per cent increase in people living below the Henderson poverty line, which established in 1966 what was required for an austere life in Australia. Social conditions are worsening much more quickly than in similar polities. When we add to such figures the intention to insert Australia into a global economy where 0.00000006 per cent of the wealthiest have as much wealth as 40 per cent of the world's population, then there should be a clamour for rights.70 Already too many writers are making claims like this: 'Australia is gaining an economic profile which in some respects does correspond with that of a third world nation'. 71 With such prospects, Australians can no longer afford to simply shrug and say 'she'll be right'.
Conclusion
When the government violates the rights of the people, insurrection is for the people, and for every portion thereof, the most sacred of rights and the most indispensable of duties.
French Constitution of 1793, Article 35
The highest ... duty of a citizen is to fight valiantly for his convictions when he is in a minority. The smaller the minority, the more unpopular it is, and the more violent are the attacks upon it, so much louder is the call of duty to defend one's opinions. To ... face 'the multitude hasting to do evil' - this is the role and test of genuine virtue and courage. Now this is, or seems to be, a more formidable task the vaster the community becomes. It is harder to make your voice heard against the roar of the ocean than against the whistling squall that sweeps down over a mountain lake. James Bryce, Promoting Good Citizenship, 1909
Looking Backward
Throughout this book it has been emphasised that it is what a person does rather than what they get which makes them a citizen. If there are corollary duties, they always arise from the right to do something. Obligations are ethical standards of a different sort. In such a perspective, looking backward from 1995 to 1901, we can state that Australian citizenship has made great advances. In 1901 Australians were subjects, and that is by definition the passive condition of being 'in subjection'. By 1995 they were much more 'active citizens', with the potential to make the laws under which they lived. To be active has always been the mark of the democratic citizen in large-scale modern, representative liberaldemocracies. But it is still only a potential 248
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The passivity of the subject of 1901 is explained by a previous history of a state control unmatched elsewhere, and a state provision of goods from 1788 onwards. It is further explained by the success of that system in ensuring well-being. This could easily be mistaken as the triumph of the liberal system which was known elsewhere in the second half of the nineteenth and early twentieth century. The men who drew up the Constitution of the Commonwealth knew only that world, a world of optimism, where the vigilance and suspicion of the citizen was not really a paramount need. Bland writes: When the Federation Fathers were fashioning our Federal system, there was little reason why they should have been suspicious of arbitrary and authoritarian governments. The XlXth century had seemed to assure for all time political and religious liberty, a condition that seemed to be founded securely upon freedom of speech and meeting, the whole buttressed by the rule of law which was policed by the Courts, enjoying immense prestige and unassailable independence.1 In sum, there was little to encourage the emergence of the agonistic citizen in 1901. This goes a long way to explaining the way citizenship unfolded here in the following fifty years. Elsewhere, the active citizenship of other peoples meant a continuing struggle against the imposition of 'national identity'. This defence of dignity through the maintenance of difference was not strongly felt here. During the nineteenth century Australians, with the exception of the Aborigines who were exterminated for their resistance, were content to be turned by nature and state into interchangeable components of the national character. They exacted no quid pro quo of rights in the social compact of 1901. No bill of rights was even mooted. Thereafter, referenda for changes to the Constitution were nearly always lost, as shown by table 9.2 The inequities and contradictions in the Constitution were seldom criticised even by those who thought of that document as an expression of the citizens. It is emblematic of this lack of resistance, and plain failure to realise how important it was to inscribe citizens as the anti-state, that citizenship was not built into the Constitution. The word 'citizen' was not used once 'from beginning to end of the Constitution'. Progressive proposals made in 1897 for the inclusion of a power to make laws for 'citizenship' were curtly rejected, although it is clear that any claim to be a liberal democracy had to presume a democratic citizen. The proposal was rejected because people 'not of the same blood as we are' could naturalise and become citizens and thus have rights; that the citizenship of the States was already known and that was sufficient; that all citizens of the States were automatically citizens of the
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Table 9 Constitutional referendums, 1901-88 Year
Proposal
1906 Senate elections 1910 Finance State debts
1911 Legislative powers Monopolies 1913 Trade and commerce Corporations Industrial matters Railway disputes Trusts Monopolies 1919 Legislative powers Monopolies 1926 Legislative powers Essential services 1928 State debts 1936 Aviation Marketing 1944 Postwar powers 1946 Social services Marketing Industrial employment 1948 Rents, prices 1951 Communists 1967 Nexus
Government submitting
States approving
*Protectionist *Fusion *Fusion Labor Labor *Labor *Labor *Labor *Labor *Labor *Labor *Nationalist *Nationalist Nat. - C.P. Nat. - C.P. *Nat. - C.P. U.A.P. *U.A.P. Labor *Labor *Labor *Labor
6
Labor Liberal/C.P. Liberal/C.P. Aborigines Liberal/C.P. 1973 Prices Labor Labor Incomes 1974 Simultaneous elections *Labor *Labor Amendment Democratic elections *Labor *Labor Local government 1977 Simultaneous elections Liberal/NCP Liberal/NCP Casual vacancies Territorial votes Liberal/NCP Retirement of judges Liberal/NCP 1984 Simultaneous elections *Labor Interchange of powers *Labor 1988 Parliamentary terms Labor Fair elections Labor Local government Labor Rights and freedoms Labor
3 (Qld, except WA, Tas) 5 (all NSW) 1 (WA) 1 (WA) 3 (Qld, SA, WA) 3 (Qld, SA, WA) 3 (Qld, SA, WA) 3 (Qld, SA, WA) 3 (Qld, SA, WA) 3 (Qld, SA, WA) 3 (Vic, Qld, WA) 3 (Qld, SA, WA) 2 (NSW, Qld) 2 (NSW, Qld) 6
2 (Vic, Qld) 0
2 (SA, WA) 6
3 (NSW, Vic, WA) 3 (NSW, Vic, WA)
0
3 (Qld, WA, Tas) 1 (NSW)
6 0 0
1 1 1 1 3 6 6 6
(NSW) (NSW) (NSW) (NSW) (NSW, Vic, SA)
2 (NSW, Vic) 0 0 0 0 0
% of Electors approving 82.65 49.04 59.95 39.42 39.89 49.38 49.33 49.33 49.13 49.78 49.33 49.65 48.64 43.50 42.79 74.30 53.56 36.26 45.99 54.39 50.57 50.30 40.66 49.44 40.25 90.77 43.81 34.42 48.32 48.02 47.23 46.87 62.20 73.30 77.70 80.10 50.60 47.10 32.92 37.60 33.62 30.79
Notes: *Referendum held at same time as a federal election. Italicised subjects achieved sufficient majorities for alteration to the Constitution. Source: Brian Galligan andJ.R. Nethercote, The Constitutional Commission and the 1988 Referendums, Centre for Research on Federal Financial Relations and Royal Australian Institute of Public Administration (ACT Division), Canberra, 1989) p. 137.
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Commonwealth; that in any case citizenship would be 'narrower' than the status of subjectship of the Empire; and that it might allow the creation of political rights. Even those in favour of the creation of such a power stated that it would allow the Commonwealth to exclude from citizenship 'people of any undesirable race or undesirable antecedents'. Dr Quick, who had moved the inclusion of the power, warned that without it the Constitution would be 'manifesdy defective'. With great foresight he warned that new rights would be created under the external affairs power and it was therefore sensible to be able to specify who the citizens were who would benefit from such rights. 3 Although the defective nature of the Constitution posed by the absence of the 'citizen' in it was clearly seen by other lawyers who followed Dr Quick, the same lack of concern for the issue and concern about technicalities meant that ninety years later its inclusion in the Constitution was not even considered when recommended to government. The Constitutional Commission of 1988 recommended that 'citizenship' be included in the powers of the Commonwealth mainly because 'subject of the Queen' was no longer appropriate to the functioning of the Constitution. Indeed, if the proposals about the right to vote which it made were adopted, the status of 'subject' would be even more inadequate. Its proposal for such a power would allow a definition of what classes of people could be citizens. It is, however, notable that even the Commission cautiously refused any enlargement of the notion of citizenship and refused to consider the introduction here of the notion that 'once a citizen, always a citizen' (the rule of Article 1 of the Fourteenth Amendment of the United States Constitution). 4 The formal absence of the notion of the citizen in the Constitution or of any of the rights which give that status substance - demonstrates how unimportant citizenship seems to the majority of Australian leaders and to the populace at large. The state was thus very powerful in Australia. Consequently, with no strong sense that to be a citizen is to force justice from the power of state, as evidenced in rights, Australians felt little desire in 1901-50 to defend their difference - above all, Celtic difference - from the state desire to create an Anglo-Celtic national image. After some resistance in the nineteenth century, that extraordinary hybrid was constructed, so bizarre in the context of the histories behind each ethnie that it still is often condemned as non-existent. Perhaps, had the new arrivals not always been from the British Isles, and the Aborigines not been put out of sight and out of mind, there might have been more resistance, and an emerging feeling of citizen virtue. But in the first fifty years of this century Australians, although produced as an Anglo-Celtic hybrid, were a most homogeneous population who felt no need for nationalism for or against the state.
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FROM SUBJECT TO CITIZEN
It must be stated immediately that this history was not entirely disadvantageous in the longer run. At first it meant an easy acceptance of AngloCeltic norms. But it also meant a weak sense of national identity by the very people who accepted. Division was limited to sectarianism and schoolboy brawls. Nobody cared about being Australian the way the people of the bitterly constructed nations of Europe cared about their nationalism precisely because no one had had to fight against any state power to do so. The stable but weak Anglo-Celtic compound was easily diluted when migration of the non-English speaking background migrants started after 1945. There was no bitter defence of a dearly held national identity or its symbols. There were no massacres of foreigners; no racial riots; no persecution of the newcomers for ideological reasons. The situation was not the same for the Aborigines. But for most 'reffos'; 'bloody Baits'; 'wogs' and 'slants' the style was more one of benign incomprehension, indifference and irritation, occasionally flowing over into fist fights. It is true that, until perhaps 1972, there was an unrelenting expectation that the newcomer would join the Anglo-Celtic national family. But slowness or refusal to do so did not mean political persecution. Rather, so sure were 'old' Australians that they had the best of all possible worlds, including that of citizenship, they were sure that the recalcitrant would see the light of local superiority sooner or later. Moreover, this was a new country, populated by waves of migrants who, in the first generation at least, were always more concerned with economic and social security and then with 'getting ahead' than with politics, which came a distant third after sport. So the rupture with a particular national identity was relatively easy as multiculturalism was accepted. No racist or ethnic episodes slowed down or prevented this rupture, unlike the experience of the United States or France. Multiculturalism inevitably led to a questioning of the very notion of 'national identity' as a pre-existing homogeneity. After 1972 Australian citizenship rapidly became ever more inclusive, partly because it had to and partly because it did not matter. Australian admission rules are as least as open and progressive as those of any other comparable nation-state. Women had, of course, always been admitted to the status of active citizens. After 1903 they were completely equal with men at the polling booth, which is the only place where an absolute equality is required for liberal democratic citizenship. This is why they have not had separate treatment as an excluded group in this book. Non-English speaking background groups have been ever more easily admitted to citizenship, and when dual citizenship is accepted, as was recommended in 1994, the last real impediment to citizenship will disappear for them. 5 The next step would be towards the reality of one birthplace and multiple citizenships, ending the nationality/citizenship
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nexus entirely. The Aborigines, always the most excluded from citizenship in Australia, have now been included as equal active citizens. Gone are the days of legal inferiority, like the inability to leave the country without permission of the immigration authorities. Broadly speaking, at present there exists equality with regard to admission to citizenship. The 6 per cent who do not choose to become citizens can therefore be seen as exercising a right to refuse to join. No longer is there a regime which excludes whole categories of people from citizenship on 'racist' or 'deep cultural' grounds. Yet there remains the problem that there is still too little in the way of rights, and too unjust a distribution of rights once a person becomes a citizen, for Australians to be completely sanguine about what has been achieved. It is clear that the basic right, one vote one value, still does not exist for anyone, men, women, migrants, Aboriginal people. They are equal in their political inequality. Since the equal vote is what ensures that all the other rights exist and grounds any claim that power 'from below' exists, it is essential that it be attained formally. The High Court refused to change the rule about one vote one value when it considered the issue again in 1996 in the McGinty case, so far unreported. Other rights designed to guarantee the debate about the collective good have to accompany that right if it is not to be an empty victory. A bill of rights, or at least a syndrome of rights, is needed to unite all the rights in a meaningful whole. Australia still does not have a bill of rights. The proposal of the Constitutional Commission of 1988 that this be done was rejected at referendum. No real argument has been made officially that the civil and political rights in that list also require economic, social and educational rights to make the first practical. All these passive rights (what you get) are essential to the capacity to bring a different voice to the debate about the collective good. The passive rights have always been disregarded here because of the general well-being of past eras when there were few really poor people in Australia when compared to other countries. They existed without having to be insisted upon. Today, that well-being is fast disappearing and the passive rights require entrenchment as rights if the goal of the active citizen, proclaimed incessantly in 1985-95, is to be attained. The absence of third-generation rights has, and still does, affect certain groups of citizens unjustly. For example, women can rightly ask now: What is the justification for unequal pay for equal work? This was the principle laid down in the Harvester judgment in 1907 when it was justified on the grounds that the man was putatively a breadwinner for a typical family. It existed formally until the Whitlam era. Again, the Aborigines could ask why land could only be owned as a tradeable object
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according to the rules of real property law, which was the case until the Mabo decision in 1992. Yet again, parents and children are justified in protesting against education policy in Victoria after the election of the Kennett government, which makes them pay for what should be free. 6 All are entitled to point to the failure to put into practice the new principles enunciated thereafter, as statistics reveal. But when women, children and Aborigines insist on difference and also claim that they are deprived of citizen rights, they are only justified where it concerns treatment in economic, social and educational realms if this results in an inability to function as citizens. This ability can exist whether or not they receive equal treatment with men or whites. The denial of the justice of equal treatment, in fact, is to their advantage, given their relatively inferior condition. Indeed, the strength of the active liberal-socialist model of citizenship which has been used throughout in this book is that it provides a measure for the success of affirmative action, or positive discrimination. It does not require equal treatment since this would mean state intervention and control of society which is total, and therefore, totalitarian. It would also mean the elimination of difference. But it does mean that to secure the autonomy of the thinking, neo-Kantian citizen may require a differentiated distribution of economic, social and educational rights if what is provided leaves some groups unable to function as such. Moreover, as the context becomes more complex (as it always has), ever more rights will be needed to attain that condition. For example, higher levels of general education will be needed even to understand what are the issues which we face.7 Nevertheless, we are entitled to wonder why, even given these reservations, so much remains as yet unrealised. As the quotations at the head of this chapter indicate, the foremost duty of a citizen is to act 'agin the government' in the best sense. Why? As the 1793 French Constitution indicated immediately after listing the rights of a citizen, the first of which was to take an active equal part in constituting the popular sovereign, 'the necessity of enunciating these rights implies either the presence or the recent memory of despotism'.8 The modern democratic citizen established himself and herself as such a political actor with the right to decide what was good for the polity, over centuries of struggle against the state power, and has fought to retain those rights ever since, always aware that the price of freedom was eternal vigilance. That citizen has learnt that his and her right to participate equally in the debate over what the good of the collectivity requires rests on all the rights won. This was true for the British in their struggles against the Tudor kings, through the Glorious Revolution of 1688, in the bitter struggles of Wilkes in the eighteenth century, in the struggle for manhood suffrage and control of the House of Lords into
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the twentieth century. This was true for the Americans from the time of the Pilgrim Fathers and the first town Constitutions described by de Tocqueville, through the Virginia Declaration and the American War of Independence and Revolution, and the Civil War. This was true for the French from the Declaration of the Rights of Man and the Citizen, through the French Revolution, and those of 1830, 1848 and 1871. This was true for the Italians from the risings of the Mazzinians, through the 1848 Revolutions against Austro-Hungarian tyranny, to the struggle of the resistance against Fascism. This was true for the Indians from 1857 and the mutiny, through the satyagraha campaigns of Gandhi to the struggle for independence less than fifty years ago. The list could go on to include most of the countries of Latin America and Africa. Democratic citizenship has always been won against the state. When reference is made in the legal cases of Australia reference to the Magna Carta, the Bill of Rights and so on, which are the foundation of the rights of a citizen in our tradition, the fact that they were products of political revolt is unintentionally remembered. All these legal rights have a political foundation. Indeed, the notion of the agonistic citizen is usually juxtaposed in the great documents of the British tradition (and more so those of continental Europe) with the primary right founding power from below. Thus, in the Bill of Rights we read: '7) That the subjects which are Protestants, may have arms for their defence suitable to their condition ... 8) That election of members of Parliament ought to be free ...'. It is necessary to labour this point that the democratic citizen is 'agin the government' to the point of carrying arms to assert power from below against the tyrant, and to control those he elected and those who they employ. It is necessary because 'old' Australia did not go through that experience except as heirs to British traditions. This explains that while many of the formal gains are enacted now, we may only speak of the potential to be democratic citizens, the civic culture of virtue being relatively absent. Fortunately, many of the ethnic minorities in Australia come directly from places struggling to establish power from below, and the more their voices are heard the more that virtue will grow. It is also necessary to note that the vaunted anarchic attitudes of the Celtic myth are not the disciplined civic virtue of the citizen. It is therefore dangerous to revive it. Recrudescent Nationalism The history of citizenship in 1901-95 shows that the main basis of exclusion, closure and therefore antidemocratic rules of citizenship, was the requirement that all applicants 'belong' to the 'national family' before
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FROM SUBJECT TO CITIZEN
they would be admitted. Conversely, it is clear that the more the notion of belonging to the national family was erased from the rules, the more the rules became inclusive, open and democratic. There is, therefore, some threat to further progress in a democratic sense from the fostering of the new nationalism by the state as we approach 2001. Much hinges on how this is understood. Our account of this progress shows that there are different ways of 'belonging', or understanding how a consensus about the collective good can be developed and a community forged. For, we recall, a community is no more than a collectivity united in a common project. There is still much confusion among Australian leaders who seek to foster civic virtue through the new nationalism. Two statements made on the same day by the then Minister for Immigration and Ethnic Affairs, Nick Bolkus, demonstrate this. In making recommendations about enhancing Australian citizenship he stated both that it meant joining the Australian family and that it meant leaving all families out. 9 Again, while proclaiming that to be Australian was to adopt what we have called the Celtic labour collective memory, and stating blandly that all Australians share a past, a present and a future, the ex-Prime Minister, Paul Keating, also described an Australian citizen more ambiguously. A citizen was someone who 'promoted [emphasis added] common national interests and values on the basis of the cultural identity, justice, equality and freedom which was their entitlement'. In return they were obliged to ensure that their first loyalty was to Australia.10 He was clearly wrong when he stated that Australians shared a past. But what could it mean both to demand loyalty to a pre-existing entity, Australia, and to say that they would promote that entity? We look to existing Australian discussion for some answers. What Is So Special About 'Our Fellow Countrymen'? We steal this felicitous question from a leading article as it highlights what is the problem posed by any notion of denying absolutely 'belonging' to a nation. 11 It is possible both to decry the notion that a nation is summed up in a common collective memory, which is unique and therefore exclusive, and still recognise that there is a place and a need for such a notion if only to ensure distributive justice in a less than global community. But if nationality is to be more than an ethnic affiliation and the crushing of the collective memories of others by a dominant ethnic group, what could it be? David Miller suggests that it should be thought of as 'nation inventing', where out of real disparate multi-ethnicity is created a myth of a common past. But then it is a very forward-looking practice, not one which rests solely on preceding sociological, religious or linguistic
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communities, but on a political dialogue or polylogue where the myth is forged ... and reforged and reforged. 12 This leaves the question of what that practice might be in more precise terms. That is relatively easy if the starting point - as adopted by Miller is that of a common, long- standing experience of living together. One merely indicates the institutions which a society has evolved as the place for negotiation with the corresponding procedures. The problem arises when there is no long-standing commonalty, and the newcomers arrive in droves, continuously, and they are different. Then the sort of institutions and procedures which are appropriate need to be renegotiated. On this issue, the proposals of Chandran Kukathas seem more appropriate than those of Miller given the multicultural experience. In his Multicultural Citizens Kukathas suggests that to bring unity from diversity what is required is universalist value-neutral procedural politics. He recognises that national identity involves the inheritance of politico/legal institutions and that these are challenged by multi-ethnicity and multiculturalism. So, to resolve the dilemma he proposed 'to develop institutions that will accommodate different cultural communities, but not institutions that are intended to reshape them or society in accordance with a specific ideal'. 13 Thus, he leaves out the object of creating a mythic collective memory which was part of Miller's view. Instead, he wants to focus on the agreed set of political institutions which would be value-neutral as to outcomes, or the forging of identity. 14 C. L. Ten expresses very similar views when he states that: 'liberal political morality gives [migrant groups] the freedom to criticise that political morality itself, and to participate in reshaping it. But they have to do so by conforming to the relevant decision-procedures ... But political assimilation is all the assimilation to which they should be subjected'. 15 While this does not seem entirely distinct from cultural multiculturalism, the readiness to admit that they may reshape is significant. By different routes Kukathas and Ten both end up endorsing proceduralist views like those of Bobbio and other Europeans. They are decidedly anti-communitarian if we understand that in the early Walzer sense, where a nation is understood as a club or family to which outsiders can be refused membership. Michael Walzer's famous words run: We might think of nations as national clubs or families ... What is at stake here is the shape of the community that acts in the world, exercises sovereignty, and so on. Admission and exclusion are at the core of communal independence. They suggest the deepest meaning of self-determination. Without them there could be no communities of character, historically stable, ongoing associations of men and women with some special commitment to one another and some special sense of their common life.16
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We can gauge the strength of his position from the fact that when he examined the White Australia policy as an example, he was only prepared to say it was wrong on the grounds that Australians had much more land than they needed and could not hold on to it. Thus, a principle of mutual aid would force distributive justice. So radical a view in defence of community has had to be nuanced, even if not entirely given up in the face of mass migration and multi-ethnic polities. But Walzer still states that we are social before we are political or economic beings, contradicting Bobbio and most moderns, although he is now an exponent of 'critical associationism'. This is close to Miller's position in that it is forced to the liberal-socialist position but does not wish to accept its anti-communitarian implications. 17 It is clear from the Australian experience of multiculturalism, in which it was a forerunner of world-wide trends, that the communitarian view of national identity worked against democratic citizenship solutions as it closed down both debate on the good and excluded too many people too long from participation in law-making. Contrarily, the procedural view facilitated the opposite as it allowed negotiation about reshaping the public space. The only fruitful understanding of national identity, given that nation-states will exist into the foreseeable future, is that in which 'belonging' is forged. This means that any implicit or explicit a priori adhesion to the institutions of the past without full debate is to continue what is regarded in practice and in theory as no longer viable. The future of democratic citizenship here must therefore involve the nature of the auspicated Republic. There is now a vast literature on that issue. On the basis of the Australian experience of citizenship, we can be sure that the potential for real democratic citizenship here will be slowed down if certain positions in the debate gain support. The first is that which maintains that we have a Republic here already, and no change is needed. The second is that which suggests that a constitutional monarchy is as functional to democracy as anything else. The third is that which maintains that no institutional reform is required other than that of replacing the monarch by an Australian as head of state. The last is the minimalist solution favoured by ex-Prime Minister Keating. All close the possibility of an equal voice for every citizen, old and new, about reshaping institutions. 18 Sometimes this readiness to close down the discussion is almost explicit: 'To inflict on our country the wound of a divisive debate about a republican form of government - in a form not yet identified in its particularity - would be grievously damaging to the spirit of the country: at least at this time'. 19 Often the theme is that it all seems to work all right in practice and 'if it ain't broke don't fix it'. Readers will have noted that all the critics of such views whom I have cited are
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'ethnics'. Once again, it is such a person who points out that the populace here does not agree that government works satisfactorily and does not trust people who assert that it does.20 All the surveys support that person's view and not the view of the Report of the Republican Advisory Committee which, after blandly stating that the Australian state derives from the people, then ignores the people's views by affirming: 'The hereditary office of the monarchy is the only element of the Australian system of government which is not consistent with a republican form of government. The only change therefore required to make Australian [sic] a completely republican system of government is to remove the monarchal Compared to the shallowness of the Report, Chief Justice Kirby's views in favour of constitutional monarchy are much more sophisticated since he, like Benjamin Constant before him, realises that the monarch does not matter very much. Indeed, technically it is immaterial who is head of state if that person is not elected by the people or controlled 'from below'. Even were these impediments to the potential which exists overcome, that may not be sufficient as we look forward to the twenty-first century when the context will not be that of nation-states as we know it. Looking Forward to the Twenty-First Century
Australian rules about admission to citizenship may have made great progress since 1901, above all in de-emphasising the nationality prerequisite. Australia can justly claim to have set standards for other countries to attain in that regard. This is all the more remarkable given the way the country lagged behind in the days of the White Australia policy. It may even be approaching a position where the remaining procedures for democratic citizenship will soon be introduced, probably through High Court judgments reflecting international norms for human rights. But the importance of those achievements depends on the continuation of the nation-state as the primary context for measuring the rules of democratic citizenship. This does not seem to be the most probable future and is not one envisaged by the political parties of Australia. They believe rather that Australia will only be successful by entering a regional and globalising free market, and that will mean a regional polity and citizen, with a new set of procedures to meet. Despite constant official allusion to that future in Australia and elsewhere, very little has been done to face the novelty of a supranational rule of law and polity, or a new level of citizenship above that of the 'national citizen'. The emergence of the regional citizen will be the death knell of the strong 'communitarian national' notion of citizenship which hangs on in debate. What will replace even a weak version of national citizenship where all
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citizens forge an identity together wherever they come from within a national space? The answer depends on the nature of the regional future and how far Australia intends to participate in it. Put another way, the answer depends on how far and in what sense this nation-state and its people will be 'sovereign' in any twenty-first century we can at present envisage. Regionalism and the Regional Citizen We have measured the success of Australia's citizenship rules by what might be expected in the context of the nation-state. As we have seen, it has been relatively successful despite some continuing lags. The nation-state will certainly remain as one context, but it is today being inserted into a wider context which is changing its role, willynilly.22 This is certainly true for Australia. So, as the context changes we can expect citizenship itself to change as it did when the city-state gave way to the nation-state. What then is this new context and how far have we entered it? The nation-state has gone into crisis as a solution to world problems because of its relative failure as the form for economic development in a highly competitive world. It is now commonly accepted that the two world wars of the twentieth century were fought by rivals for economic markets and space. What I wish to focus on is the meaninglessness of the economic barriers which were artificially set up in the nineteenth century as each nation-state sought to raise its standard of living sufficiently to 'buy' the loyalty of its populace through social services. The relative advantage of the first nation-state to develop vis-a-vis the others explained the end of free trade as a system. The relative failure to develop uniformly became more and more extreme as the last comers, like Italy, or Russia, or the new world countries without markets which were big enough at home, entered the competition. It is salutary to read the history of the destruction of viable agricultural production in Italy as it sought to turn inappropriate soil into bread bins for its populace. It was a similar error in the USSR which triggered the decline of that economy in the debacle of the Virgin Lands, where government policy turned inappropriate land over to grain production. The principle of high tariff barriers to maintain national economic viability against foreign competition was, as I. Wallerstein and many others have pointed out, a negation of the already existing commodity chains which crossed the borders (as they always had) to allow the optimal productive resources and skills to be used. The nation-states themselves recognised this unconsciously, by fighting for natural resource units, like the Alsace-Lorraine Basin, or the Polish marches, or ports like
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Trieste or Danzig. What the artificial tariff barrier also destroyed was, of course, the market exchange between different ethnic groups. Fernand Braudel has made invaluable contributions to our understanding of premodern - that is, pre-nation-state worlds - by focusing on the importance of great market entrepots like Antwerp, where the market itself became a place of convivial exchange between traders from vastly different cultures. Out of this came the breakthroughs in economic, accounting and banking practices which allowed a spiralling population to be fed.23 The major crisis of the system came in 1929-45 in a frightful combination of economic and political disasters culminating in the greatest and most destructive war in known history. Since then, for economic reasons, there have been renewed attempts - always in the face of tenacious opposition - to break down economic nationalism, as it became increasingly clear that it could not produce a higher standard of living globally, let alone maintain that which already existed in the richest states, like those of North America, Australia and New Zealand. As ar result, global capitalism has changed completely in the last twenty years and those changes can be expected to continue well into the next century. How can we typify global capitalism today? The first reality is that it is increasingly reintroducing free trade across nation-state borders in a world characterised in the past by high tariff barriers. This is done because economists, and then those states themselves, realise that economic growth can only continue if the economies of scale grow larger. Even huge national markets like those of the United States are no longer big enough. To be competitive countries have therefore formed unions for free trade across their borders. 24 Typical of these are the European Union, the North American Free Trade Association and, belatedly, the Asia-Pacific Economic Cooperation (APEC) area. In a gradual and initially haphazard way there has been increasing freedom of movement across borders of capital, goods, and, most importantly for this book, labour. While what flows across borders depends on the particular case, what policy-makers hope for is freedom of movement, even of ideas and information, which are crucial to development. 25 It was a process which started in the hegemonic centre states which had suffered most in the Second World War and needed to catch up. Such states could not again go through the process which they had experienced when first developing as capitalist nations. Already, in an endeavour to make their people loyal to the nation, they had introduced national education systems, national social security systems and, in some places, national health care systems. Their populations would not have accepted a national development which caused them too much suffering, and in liberal-democracies the voters ultimately called the tune.
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Twenty years ago a writer would have considered developments in the great victor of the Second World War, the United States, more significant than those of regional economies. That country and the disintegrating British Empire continued their closed protectionist regimes. Moreover, the newly liberated developing countries embarked on that form of development which prompted development theorists to believe that protected economic development had to precede democracy or human rights. The four tigers of Asia - Taiwan, Hong Kong, Korea and Singapore - thus built their present prosperity on oppression and the suffering of their populations, whatever the situation now. In them, the racist exclusivism earlier practised in the European nation-states vis-d-vis ethnic minorities was frightful, and their women are still fighting to be heard. It is significant that most Islamic states have still not even signed the international Conventions about human rights which were the basis of the plan for peace between states, the goal of the United Nations organisation. 26 In sum, the recognition that the nation-state was entering a relative end of sovereignty only came slowly, even to those who were ending it. What is essential to that notion is the right to exclude foreigners from your territory. It was implicitly eroded by the influx of foreign labour over borders as the regional economies' membership grew. Thus, the European Economic Community started with six members in 1957, grew to nine in 1975, twelve in 1986 and in 1996 had fifteen members. The population involved has more than doubled to nearly 370 million peopie. The resulting rate and flow and mobility of the migrating workers has become much more rapid than ever before in human history as they move from one place to another following the development and changes in post-national production based on breakthroughs and comparative advantage in information and technology. Where the massive migration from Europe to the new world in the nineteenth century was marked by a shifting of homes, and the expectation of the hosts was integration, the systems set up were designed to achieve that transition. The new migration of the regional economies has nothing to do with a shift in affective loyalties to the place of destination. Most migrants in most countries do not take out a new nationality, even where it is easy to do so. Alternatively, they take out two passports, even where it is illegal to do so. So, for today and for the future there will be no process of integration for up to a fifth of the world's population in advanced countries. These denizens do not intend to join and will not join the national family of the state where they work.27 As this suggests, if the old rules about citizenship and the old notion of the citizen appropriate to the nation-state are retained, up to a fifth of
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the population of a state will be excluded from citizenship ad infinitum. Where a fifth of the population cannot vote it is difficult to claim that they live in a democracy. So with the economic changes a reassessment of what it is to be a citizen has taken place. It provides the point of reference for 'best practice' in the world of tomorrow, as it is foreseen even here. No longer can the premise that someone must belong nationally before they have citizen rights go unchallenged, especially in states adapting socially and politically to the new multicultural future of polyglot nations with many transient workers. We will use the Council of Europe and the European Union's experience as the most advanced example of a regional polity in developing the appropriate citizen rules for a world which is 'globalising' and in which there is a relative end to national sovereignty. 28 It is not a world which denies the nation-state but one which tries to square that past and its relative failure with the new regional developments. Australia has committed itself to such an economic future and can only lose by not watching the road ahead as well as looking into the rear vision mirror to see where we come from nationally.29 The European Example Altiero Spinelli and others like him became the spokesmen in the Second World War for a post-national federation of European states. Their projects were short-lived until renewed debate about the possibility began with the signing of the Maastricht Treaty on European unity in 1992. The interest of their views lies in the traces they left even once the architects of European unity gave up the idea that nation-states should or would disappear. For it was clear that ideas for supra-national contexts within which political life would have to be thought had to start from the reality of the nation-state. It was there in various forms and stages of development and would not go away. Others who worked for European unity starting from the same discredit which had befallen the nationstate ideal after the extreme nationalism of the Fascist regimes which had been dominant in Europe from the 1930s to 1945 accepted, none the less, that plans for the future had to start from the nation-state. In this recognition that the nation-state will continue there was a similarity with the development of the nation-state out of the Italian city-states where Aristotle had been rediscovered. But very few such city-states remain (Monaco, Liechtenstein) in a world of modern states, and the nation-state is the preponderant form today. So Robert Schuman, architect of the more modest Coal and Steel Community of 1951 out of which there grew the European Economic Community seven years later, wrote in his Pour I'Europe:
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Of course, I underline it again, it is not a question of eliminating ethnic and political frontiers. They are a historical given: we do not pretend to correct history, or to invent a rationalised and managed geography. What we want is to take away from frontiers their rigidity and what I call their intransigent hostility. Poor frontiers! They cannot pretend to be inviolable, or to guarantee our security or independence. We walk over them, fly over them, parachutists and fifth columnists scorn them. Frontiers are no longer fortified, there is no Maginot line ...30
Given the absolute impossibility of thinking of a future without the modern state, what was thus proposed was a new layer of political life, a new context above that of the nation-state. Within nation-states, ideas like those of Spinelli were increasingly written into post-Second World War Constitutions which devolved power to regional and communal authorities. In stating this, we do not ignore the continuing deficiencies and closures within the member states or the European Union. Viewed as a sociological reality, many of these states are racked with increasing racism, discrimination against non-nationals, and where those who come from outside the European Union's fifteen members are concerned and these are the majority of immigrants today - harsher exclusionary measures than in Australia. States like France, Germany, Great Britain, and increasingly, Italy, despite democratic Constitutions and bills of rights, are based on a strongly nationalist citizenry. This is the product of their very success as nation-states in attaining standards for democracy and human rights which were models until the sovereign nation-state system itself came under siege. It is worthy of note that the United States, that model of democracy and human rights in 1945, is so sure that it sets the standards that it has refused to adhere to any international agreements about such standards. This is auspicious for Australia. It is precisely the countries which have been most successful as liberal democracies, and in promoting the active citizen (like France), which find it most difficult to face external criticism about their internal practice. The Swiss treatment of refugees lags far behind acceptable standards. Australia's weakness and weak nationalism should mean less resistance to a system of regional norms. So, what we discuss now concerns not the single nation-states of the European Union, but only the new regional level of citizenship which has emerged there. Australia is still an easier place for a new migrant, given its established multicultural structures that so far are only pipedreams in Europe. Given this caveat, it is also necessary to note the remarkable rapidity with which European norms for rights are being translated legally into each nation-state's own rules. They are integrating their nation-state structures into those of the European Union. The issue
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was how this new supra-national semi-state could be thought of and what implications it had for the Janus-face of all states: its citizens. To answer that question the different protagonists of the idea that the limits to the nation-state had been seen in its Hitlerian manifestation looked back to earlier sources of inspiration for guides. Indeed, they built on a neglected tradition in their national histories. The overwhelming theme had been that going back to Rousseau who detested any notion of Europe on the grounds that it was impossible to found any civic loyalty on diversity. Thus had started the cult of the warrior-citizen which culminated in the marching armies of Fascism, whose object was precisely to forge a family feeling in a national army.31 In some places this resulted in maintaining the myth that the people were united by blood, and founded all rights to belong and exercise citizen rights on the ius sanguinis. Such notions were anomalous but they pointed to the will to create a centralised civic unity for the nation which was common to all modern states. Instead, postwar European federalists found their inspiration in early federal theorists of Europe, like P. J. Proudhon and Carlo Cattaneo as they were adapted by antijacobin anti-Rousseau democrats at the beginning of this century. Such thinkers had seen that difference was not only irreducible, but a source of richness. They had therefore favoured the maintenance of regional difference through devolving national decision-making from the centre to the regions, usually in some federal or quasi-federal scheme. Their pragmatism and refusal of grand schemes led them to assert the merits of the 'sparrow's' view of the world as against that of the Olympian eagle, who saw with Hegelian perspicacity what the meaning and telos of history was. They thus were in favour of power 'from below' as a brake on central schemes whose consequences were so often deleterious, especially when modernising economic and social structures. On the whole, at the borders of each different region, they saw the market - especially the economy - as the place of exchange and mediation. It also allowed the resolution of difference on a low level.32 Such federalism as they proposed was thus different from that better known to the Anglo-Saxon tradition going back to the American Revolution. Its object was to guarantee difference by empowering the local region through democracy. It stressed a technical, commonsense solution of problems at a local level rather than a legalistic assessment about the agreed or appropriate division of powers between central and regional government. It is the regional and democratic aspect of their thought which needs notice as the corollary to the establishment of a European federation. It meant that such thinkers looked not only to the model of the United States but to that of Switzerland. They did so just as the focus in the United States was shifting from the de Tocquevillian emphasis on its basis in small New England
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communities where direct democracy was practised to that of the right of the people to override the different communities - which was one of the issues at stake in the Civil War. In Switzerland the small, directly democratic communities like the Graubunden continued to exist and to exist effectively in a multilingual, multicultural state quite different from the melting-pot of North America.33 Different ideas passed through European heads from those of contemporary United States opinion. 34 The emphasis on the market place as the locus for noisy yet peaceful exchange was the point of major value in their thought. Eminently nonideological, it also identified the source of the major problem of nationstates as their 'economic autarchy' or protectionism. Today it is clear that national tariff barriers and empires of exclusion were disastrous, economically and politically. Then it represented a genius of perception that the major source of conflict and strife was the policy of exclusion of capital, goods and human beings by artificial borders which had nothing to do with traditional economy worlds or market exchanges. What the European Coal and Steel Community (1951) and then the European Common Market (1957) created was an increasingly free movement of all three across borders. According to the logic of neo-functionalism this bound each state into reciprocal ties and obligations and fostered greater and greater unity. Yet even those who were conscious of this like Jean Monnet, the 'father' of European unity - understood it in particular terms which were not simply those of the nation-state. The creation of Europe as a Community was the creation of a space which while economic was a union of 'peoples' not nation-states, which existed separately and below it.35 The democratic flavour in Monnet's choice of typification accorded with his early belief that nationalism was exclusivist and fostered war not peace. It also recognised the possibility of multiple identities and loyalties in individuals: they could, for example, be French and European. The growth of the European Economic Community into the Single Market (1986) and the European Union (1993) was characterised over a thirty-year period by an increasingly free flow of capital, goods and labour in an increasingly large space as it grew from six to fifteen members.36 The market which now exists is 370 million people. The main characteristic of the development of the free trade zone was the migration of workers from one nation-state member to the others. This grew incrementally as the Community increased in numbers and in economic production. When by Article 3(c) the signatories of the Treaty of Rome agreed on 'the abolition, as between member states, of obstacles to freedom of movement for persons, services and capital ...' they started waves of migration whose consequences they could not have envisaged. Hundreds of thousands of Italians, and then Spaniards and Portuguese, not
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to mention Turks, North Africans, and others not from member countries, moved to the richer burgeoning economies in the 1960s and early 1970s. At first, when transport was slower they only returned 'home' at Christmas or during the holidays, when trains and ferries were full of returnees. Many gradually re-established themselves in their places of work and shifted their families, their children growing up masters of the languages of their birthplaces, and within the limits of the ius soli, exercising full national citizenship rights. But the basic pattern was not only of mass migration but of waves of people who stayed only some time or returned home regularly, or became peripatetic. In most of the large countries of the European Community the percentage of legal, resident non-nationals was around 7 per cent but it is frequently calculated that there are up to as many illegal non-nationals for every legal non-national. In some of the smaller countries - which, like Luxembourg, had equal voting power in the central institutions of the organisation - it reached 25 per cent. 37 The decrease in flows noted by Stephen Castles and others in the period 1975-85 have been reversed since the economy recovered in the mid-1980s. Most recently, the collapse of Eastern European Communist regimes has seen an enormous increase in asylum seekers since 1989. Overall, the pattern has not only been one of massive migration, which was also a characteristic of the nineteenth century, but of increasing, and increasingly rapid, flows of migrants within Europe as those seeking work follow the labour market. The first result has been the recognition that all societies and states are multicultural and not monocultural, and that all are places of migration, which was not so in the ruling nationalist myth. Today it is widely acknowledged that only 2.2 per cent of the world population live in basically ethnically homogeneous states.38 Thus, even in the most fiercely integrationist states, like France, it is now admitted that: the societies which interest us are less and less homogeneous culturally, they are characterised much more by the multiplication of identities, by different appeals to individual and collective subjectivity by all sorts of actors who cannot meet the identity principle as it is conceived of by populism or its major variant, national populism ... [and that this means that] once ethnicity becomes a given ... the very fashion in which societies think their past and construct their history can only be transformed or overturned.39 Added to this recognition that the notion of one national identity is almost impossible anywhere, and especially in Europe as a result of the free market, is the corollary recognition summed up in these words chosen deliberately from an extreme left author: 'All developed countries ...
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are experiencing the phenomenon of international migration of the workforce ... this goes from 8-15% in the USA and in Western Europe, where it has reached 30% in Switzerland and in Corsica ... there is no sign of this diminishing'. 40 The result is a world of what Thomas Hammar, borrowing the old English legal terminology, has called 'denizens'. These are foreigners who live inside another state and often have property and family there, but are not nationals and show no desire or inclination to naturalise. Under the Treaty of Rome and subsequent agreements, if legal, they are guaranteed the same rights as nationals to social security, education, health, housing, and insurance of various sorts. Because of its imposed cost this can only be seen as a threat to national sovereignty. The classical position of European states, as stated in their own documents, is that 'according to the ideal of the nation-state', people should stay on where they were born, provided this was in their 'natural environment'. Since 'historically the welfare state ... developed ... with the nation-state ... the welfare state evolved basically into a closed system where the individuals who agree to share according to need, have to experience a sense of solidarity that comes from common membership in some human community ...'. European states experience migration as a 'threat to society'. 41 Because of this, when the issue of granting them citizen rights to vote came up in early post-Rome treaty years it was dismissed. Yet, it was clearly undemocratic to exclude from such rights up to 30 per cent of the population who produced the wealth of society. We can regard the European trends regarding citizenship as what will happen in the rest of the world in the twenty-first century. What, then, were the patterns which have been painfully established in the first and most developed of the regional free market areas, whose economic success is so undeniable that other areas of the world are now following suit in order not to be beaten in economic competition with the European Union? They were set by the preambles to the treaties and especially by Articles 2 and 3 of the European Economic Community (Rome) treaty. These indicate expressly as the objective of the European Communities the improvement of the living conditions of the people of Europe and the enhancement of peace and freedom. That basic approach leads to further detailed undertakings for: 1 prohibition of any discrimination on the grounds of nationality (Article 7); 2 for freedom of movement for workers within the Community (Article 48); 3 for the adoption of social security measures necessary to ensure that freedom of movement (Article 51);
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4 for the freedom of establishment of nationals of one member state in the territory of another member state (Articles 52-6); 5 for the right of citizens of one member state freely to provide services in another member state (Articles 59-66); and 6 for equal pay for male and female workers. Official documents of the European Union claim therefore that 'the treaties of Paris and Rome attach less importance to Community action in the economic sector than to a vision inspired by the protection of fundamental rights, associated with the ideals of liberty, equality and social justice inherent in the European tradition'. 42 We may adhere to the more modest and interested view that the European Economic Community was primarily an economic supra-national organisation at the outset. However, it had established the European Court of Justice to enforce such undertakings. The court was always made up of a majority of judges of a different nationality to their own, frequently with no training in a particular national legal system. This the court proceeded to establish, binding all the economic partners into legal rules which were at variance with and transcended those made in the highest courts of the nation-state jurisdictions. The key decision came in 1964 in the case of Costa v. Enel In that case the court held: by contrast with ordinary international treaties, the EEC has created its own legal system which, on the entry into force of the treaty, became an integral part of the legal systems of the Member States and which their courts are bound to apply. By creating a Community of unlimited duration, having its own institutions, its own personality, its own legal capacity and capacity of representation on the international plane and, more particularly, real powers stemming from a limitation of sovereignty or a transfer of powers from the States to the Community, the Member States have (albeit within limited areas) limited their sovereign rights and have thus created a body of law which binds their nationals and themselves.43 The effect of this legal legislation was to create rights of a new sort in member-state citizens. They were certainly passive rights, about what people get rather than what they do, but they were created, extended and accepted. There have been many attempts to explain this acceptance of a web of invisible obligations of a pre-political sort. The most satisfactory is that the member-states either benefited so much from the burgeoning regional economy (or could not afford to withdraw) that after some initial resistance and hesitation they went along with the new rights which had nothing to do with nationality. It may well be that a concept of citizenship can be founded merely on the right to move freely through a territory as Andrew Durand, relying
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on United States law, has argued; 44 but as Carlos Closa has pointed out, to shift it from a case-by-case legal right to a general, founding legislative right took more than twenty years, mainly due to nation-state resistance. As it was based on the provisions of the treaties it was also limited to workers, later a fact of capital importance, and even early on allowing women, the young and the old to be excluded. Yet even the incremental and limited establishment of rights in the market space provoked consideration of the wider issue of a citizenship of the Community which was severed from the principle of nationality. 45 This started with the embodiment of Monnet's Europe in the reference to 'peoples' in the Rome treaty. Such a reference was heavily loaded for men and women brought up on the notion of the general will, and more particularly on the democratic traditions of the Resistance. Continued reference to the 'people's Europe' congealed in 1974 at a Paris summit in the proposal 'to instruct a working party to study the conditions and time limits within which special rights could be granted to the citizens of the nine member states of the Community'. Since such special rights were the political rights to vote and stand in elections, this proposal marked the beginning of debate about a citizens' Europe. After various reports, in 1977 the European Parliament came up with the proposal that after ten years' residence all 'foreigners' from member-states should be allowed to vote and stand in all administrative elections at all levels where they resided. One of the most interesting suggestions was that elections to the European Parliament, which had not been democratically elected before 1979, be on the basis of a uniform electoral law and not national electoral laws. Its clear threat to nationality led to strong opposition from member-states until very recently. 46 As late as the Single European Act of 1986, the main theme of the history of the development of citizen rights in Europe was the resistance of the national governments to any proposal for the introduction of active political rights at a European level. This, given the acceptance of the right to residence (provided, in some cases, that the 'foreigner' could maintain himself or herself without burdening the state) would have meant that all the denizens of the Community could have voted. Indeed, even once it was decided that local elections did not involve national sovereignty - or a challenge to it - as in Denmark, Ireland and the Netherlands that right already existed for aliens, member-states hid behind constitutional impediments to the introduction of consistent national legislation. 47 In the case of Germany the Constitutional Court declared it illegal, illustrating the exclusive nature of citizenship based on the ius sanguinis. However, even there the court recognised that this conflicted with democratic norms. 48 It was imperative that innovations be made as the European
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Parliament approached its second elections by democratic vote in 1984. It was anticipated that it would henceforth be one of the main vehicles bringing the European Community closer to the millions who lived inside the economy it had created. The meeting of senior nation-state ministers at Fontainebleau on 25-26 June 1984 therefore set up a committee to study how 'to adopt measures intended to strengthen and promote the identity of the Community and its image in the minds of its citizens and the world as a whole'. 49 This became known as the Adonnino Committee. Its report, made a little less than a year later, addressed the 'curtailment of rules and practices which irritate Community citizens and detract from the credibility of the Community' and the 'Rights of Community citizens'. It was clear that any restriction on movement or employment was considered by Europeans to be irritating. More particularly, they wanted uniform electoral rules and the right to some participation in at least municipal elections, as well as those to the European Parliament itself. Clearly, the promotion of community commitment was seen, as it had traditionally been seen since the Greeks, to rest on the right to participate in making the laws under which a person lived. The first issue could be addressed promptly and was in the Single European Act and through a number of organisations set up thereafter. Most notable was the creation of the burgundy-coloured European passport which today allows ever-increasing numbers of Europeans to pass with a 'Schengen' wave through what remaining border controls there are within the Union. Frontier controls have shifted to the common border with the alien world. This passport and the corresponding car licences and common insurance (green cards) had only symbolic value, like the adoption of a flag and a hymn, Beethoven's Ode to Joy. The publications of the European Parliament themselves state: from a legal point of view, the European passport remains a national passport and that the harmonisation relates only to certain graphic and physical aspects ... Nevertheless, it is particularly useful, insofar as two important aims are pursued by the use of that document: one is symbolic, attaching importance to the feeling that citizens of the member states belong to the Community, and the other is practical, since the introduction of the European passport represents the first step towards implementation of the passport union, the purpose of which is the removal of internal frontier controls within the Community and equality of treatment for European citizens by nonmember countries.50 With the increasing tissue of rights being established legally, these innovations did begin important breakthroughs in the 1980s although accompanied by sneers, particularly from Anglo-Saxon commentators. Despite the hostility, it is clear that some of them would have been
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necessary. The European Community needed to extend its markets to ever-new areas and concerns, simply to keep up its growth. It needed to offset any tendency among Europeans to feel that the Community was even more of a myth and more irrelevant than was the nation-state itself.51 The European Parliament elections revealed widespread absence of participation by citizens, who felt it was an irrelevant organ where their lives were concerned. This was why the European Community introduced a large number of harmonisation schemes to allow movement in education, portability and access to minimum social standards, and exhortation to member-states to open up even their civil services to non-nationals. Most notable of these, to which we will return, was the draft Community Charter on fundamental social rights for workers of 20 October 1989. The rights created were often already made law, for example, in decisions like Stauder and Nold. Eventually, to reply to the pressure to offset the 'democratic deficit', as the lack of enthusiasm for the Community in many national populations became known, all the major proposals of the late 1980s were embodied in the Maastricht Treaty on the European Union. The relevant Articles directly concerning democratic citizenship are: 8a(i) every citizen of the Union shall have the right to move and reside freely within the territory of the member-states, subject to the limitations and the conditions laid down in this treaty and by the measures adopted to give it effect; and Article 8b (i): Every citizen of the Union residing in a Member State of which he is not a national shall have the right to vote and stand as a candidate in elections to the European Parliament in the Member State in which he resides, under the same conditions as nationals of that State ... (ii) ... every citizen of the Union residing in a Member State of which he is not a national shall have the right to vote and to stand as a candidate in elections to the European Parliament in the Member State in which he resides, under the same conditions as nationals of that State.52 The treaty also created an ombudsman; adhered to the European Convention on Human Rights (discussed below), and initiated a set of social rights for all citizens, as the European Convention on Human Rights covers only civil and political rights. What it did not introduce, although this had been proposed by many European institutions for some years, was the right to vote in the national elections of a country where a person was not a national, then only possible in Italy. Consistently with the early recognition that the modern nation-state existed and that any further supra-national organisation would have to build on such states, the European Union denied that these innovations interfered with a citizenship based on the nation-state members. The
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treaty stated that 'the Union shall respect the identities of its Member States' and 'shall contribute to the flowering of the cultures of the Member States, while respecting their national and regional diversity and at the same time bringing the common cultural heritage to the fore'. Official documents proclaimed that its object was to foster individuality and difference: 'People will still speak their own language, eat their own favourite food, read their own national and local newspapers ... But contacts with the languages, food culture and way of life of their fellow citizens in the Union will be easier'.53 The real issue was whether such innovations would implicitly undermine national citizenship by affecting the national sovereignty of the signatories to the Maastricht Treaty. The answer cannot but be theoretical as outcomes are still unclear. However, many commentators believe not only that it will, but that the logic of the abolition of the nexus between nationality and citizenship rights on the local and supra-national level ought to lead to its abolition on the national level.54 Their arguments often rest on a complex of other developments eventuating both within the existing states and at the level of the Union. The first of these is the increasing development of regionalism and the encouragement of interregional trade and semi-political alliances. These have further dimensions which flow from decisions made not only in the Union but in the wider Council of Europe whose legal and political innovations tend to be in advance of those of the European Union itself. There can be no gainsaying that the market-place free-trade Europe has stimulated regional development and that this is expected to develop continuously, often because the economy-worlds make more sense. In very many cases these economy-worlds cross borders of the nation-state as natural economic areas re-ernerge.55 Maastricht fosters such growth and responds to its implications through the explicit adoption of the principle of subsidiarity, which insists that where possible all public decisions should be taken at the lowest level possible.56 Sometimes, it is argued that member-states simply derogate from such political devolution and that it exists as an idea only. This is indeed true in the case of Great Britain where, for example, the Social Charter was not accepted as the standards set for the treatment of workers could not be met in Great Britain. On the other hand, it is usually the less important states which argue like this, not the Germans or French who push in the other direction. In recent years, and specifically with the Maastricht Treaty, both countries have already passed much of its provisions into national legislation.57 This, incidentally, parallels the acceptance in most member-states of the European Court of Human Rights as the de facto highest court of appeal on public matters in the Union.58 The anticipated future as a result of the creation of a European citi-
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zenship is often discussed by the European Parliament, whose powers were dramatically reinforced by Maastricht, which gave it a veto over proposals emanating effectively from member-state dominated organisations. 59 Since, in the words of the European President Jacques Delors, the object of these innovations was to offset the 'democratic deficit' they have much greater weight than was the case earlier. Indeed, the incoming leader of the parliament has made quite clear that the parliament intends to assert its new rights strongly, and to extend them to make the parliament truly a sovereign body, without which democracy is merely lip-service.60 This has, moreover, to be seen in the context of a proposal for a federal European Constitution, long sought by the left, by the German Christian Democrats, the ruling party in by far the strongest European member-state. 61 In 1994 a hostile French commentator portrayed the European Parliament as it approached its fourth elections: 'After fifteen years of existence, the Strasbourg Assembly is ... a second rank Parliament, whose obscure work seems incomprehensible to the very militants of the European cause'. 62 It is certainly true that the European Parliament itself recognises that it is 'that unknown quantity'. 63 However, this negative assessment has to be situated in a general loss of interest in national parliaments, a return to the local and regional and, more regrettably, the private. All voting patterns show this to be a world-wide trend. Thus, the European Parliament recognises that to establish itself and have some sort of clear constitutional role it has both to work with national parliaments and, in particular, directly with the citizens of Europe. In the globalising context its role becomes essential: 'the social and cultural problems which we used to delegate in the social-democratising phase of our societies to public authorities and to unions have become transnational questions which require a minimum of common vision in order to be regulated politically'. 64 Everything therefore points to an extension of European citizenship and a further reduction of the centrality of national citizenship, as the supra-national polity assumes many of the responsibilities in association with national and regional representative bodies. The effect will be a blend of the national and the supra-national. This is evident in the numbers of non-nationals who stood in the 1994 elections as candidates for the European Parliament. 65 It is also evident in the major conference jointly held by the French Senate and the Parliamentary Assembly of the Council of Europe, entitled 'Citizens, Representative Democracy and European Construction' (16 to 18 September 1993). We will consider some of the substantive new procedures and Acts for citizens below. Here we merely note the leitmotif of the major speech by the President of the French Senate: 'In the context of European construction,
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citizenship enables us to enlarge and transcend the limited idea of nationality, the exacerbated form of which is nationalism, and inwardlooking stance and rejection of others, evils from which we have suffered too much and from which, unfortunately, we continue to suffer in Europe'.66 Already, within the institutions of Europe there have been many voices reaffirming the need to allow non-nationals a vote in national elections, a view expressed as early as 1977 by the European Parliament.67 Commentators writing after Maastricht have made the following prognostications. The right of non-nationals to vote will be more significant in countries which are strongly decentralised like Germany and those with proportional representation like Spain. It will affect any move to secession by referendum as non-nationals may not vote the way nationals do and the margins have been so slim in the referenda on Maastricht or on whether to join (such as in Scandinavia) that the small nonnational vote will count. If the move towards federalism sought by some member-states continues, then the system of ius sanguinis would have to be abandoned as it would exclude non-nationals from full political rights.68 Nor is the fully federal option any longer completely scotched, as it seems a premise for continued economic growth. Once it recognised that there really are European citizens, as Elizabeth Meehan does in defiance of the ruling Gaullist position of 1974, the nexus between thinking about citizenship rights in terms of nationality is ended, unless Europe turns itself into a political space.69 This would only be possible as some sort of federation, yet to be 'invented'. New Acts of Citizenship
Clearly, the new European citizen must be expected to have the right to vote for representatives on the basis of one vote one value for all adults, no matter where they reside. This basic democratic principle is taken as so obvious that it is usually not stated, and the notion of a weighted vote (accepted even by Mill) is today greeted with a laugh when it is broached. Parliaments will be reinvigorated vis-d-vis the other organs of government. Representation will also exist at regional and communal level - which is usual in European Constitutions anyway - and it will be extended to the other places of public life, notably the places of education and work. There is nothing greatly novel in this although it requires a massive change to the electoral system to the European Parliament, which is outrageously malapportioned. What is new is the context understood as the new field of problems faced by a regional structure in a globalising world. Among these problems are interests covering much greater areas governed by market relations and increasing risk in the
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need to adapt quickly to what some people regard as several changes within a lifetime. Among the new salient problems which this involves are: control of information and its dissemination; control of private semi-state organisations like organised crime which could set up parallel governments; a new, much more virulent racism than that of the past, and the environmental issue which transcends nation-state borders. The mechanisms to manage such novelties at the same time as reinvigorating a citizenry which is no longer national, or at best 'dual', require radical innovations. 70 Most important is the reinvention of direct democracy through electronic technology. Representative Democracy There is no real definition of democracy in the official documents governing the European Union. However, in an endeavour to fill this gap the Council of Europe has had the member-states subscribe to the Strasbourg Consensus of 1983. All aspirant members of the Council have to meet its norms, and it has been adopted in both Africa and Latin America. Significantly, it has been much less accepted in the Asia-Pacific region. The Strasbourg Consensus was merely the formal acceptance of the positions advanced by radical Europeanists since the Second World War. It states that the essential elements of a pluralist parliamentary democracy are: Human freedom and human dignity, freedom of speech, freedom of thought and freedom of conscience, the right to criticise and the right to freedom of movement are indispensable foundations of human coexistence. Their protection and enhancement are central to all action by the state. This protection is served by: the citizen's right to choose and change government in elections conducted under universal suffrage and by secret ballot, the responsibility of the executive to the elected representatives of the people, the right and duty of those representatives to regulate life in society by means of laws and to control the executive. A democracy is an open society in which all state power is derived from the people. This
implies: the right to participation and consultation in political decision-making at local, regional and national level, free access to information and free choice between different sources of information, the freedom of the press and the media, the freedom to form political parties and to stand for political office, freedom of association, including the right to form trade unions, the right to participate in the determination of working conditions, freedom from slavery and the exploitation of human labour.
Democracy guarantees human dignity. This implies:
the right to life, liberty and respect for the human person,
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freedom of speech, thought and conscience, freedom of religious observance, freedom of movement of persons, goods and information, the rights to school and post-school education preparing the individual for life in a democratic society. Equality before the law regardless of sex, race, creed or birth, requires: an independent judiciary, the possibility of subjecting all decisions of the executive to judicial scrutiny, the subordination of the police and the armed forces to the elected government, the right to privacy and protection of personal freedoms.
In a democracy these rights and freedoms are subject to only such restrictions as to secure the protection of the rights and freedoms of others.71 The radical assertion of popular sovereignty - so foreign to the British tradition and to British debate - is what will inform the future development of the European Union. A startling formulation of what appears the 'Rousseauian' reassessment came at the joint conference of the French Senate and the Parliamentary Assembly in 1993: 'Society is not the same as society was in 1793. But the democratic principles on which our institutions, our political procedures, our actions, our hopes, and, in the case of some of us, ideals are based are the same: faith in political democracy'.72 It is notable that the 1793 Constitution allowed all foreigners to be French citizens almost at will. It is clear that the section on rights refers back to the European Convention on Human Rights to which most European member-states (and many others who are not members but wish to become members - the list now reaching thirty-four countries) subscribe. This document, together with its protocols, is widely regarded as the most advanced and best enforced human rights agreement in the world.73 The list of matters it covers has been extended to cover the new problems noted above. Its implementation and the reconciliation of conflicting rights is entrusted to a transnational court, where one judge is even chosen from Canada, which is outside the Council. The standard used to decide what should be done by a court which clearly is not afraid of a semi-'legislative' role is the standard or norm of what is appropriate in a democratic society. The latter is not understood as confined to what practically exists anywhere or what any national society would vote for, but as a notional standard like that proposed by Kant. So a national vote in favour of banning abortion and propaganda or information about abortion was overridden after the court heard argument by the Commission for Human Rights, which acts for the applicant, in terms like these: 'The Convention is a European instrument. The model thus must be that of a European democratic society ... what is necessary for the State in
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question is not decisive. The Convention demands that restrictions imposed on freedom of expression be necessary in a democratic society in general'. 74 The strong emphasis on power 'from below' in Europe, which is especially evident in the insistence that through subsidiarity greater efficiencies can be reached and multiple difference used to enrich in all senses, means a radical decentralisation and refusal of expert administrative decision-making procedures. These had been characteristic of the early European Economic Community under Monnet, who favoured dirigisme. Building on the most radical of the European member-state Constitutions, the emphasis has been on more local and regional government. The emphasis on decentralising decision-making is accompanied in the Council of Europe and the European Union by a firm commitment to a high standard of economic and social, or third-generation rights for its citizens. The standards are based on the most advanced of the European Constitutions and guaranteed in the Social Charters of both bodies. While states may derogate from them, as Great Britain and Spain have done in the case of the standards established by Maastricht, once adhered to they are enforced. The limitation is that they apply to workers only and thus do not cover women who do not work or other minorities. On the other hand, they apply not only to citizens but to aliens, as is normal with passive rights in all civilised societies. To compensate for these omissions, the Convention on Human Rights has been extended by protocols and Conventions covering many disadvantaged groups, like housewives, and to cope with a new racism. Notable in this regard is the policy of the protocol regarding minorities. In the proposed Charter for Regional and Minority Languages, opened for signature on 5 November 1992, the use of minority languages in all public matters is guaranteed. So is teaching at all levels of schooling, from pre-school to university. This was rationalised in these terms: 'Realising that the protection and promotion of minority languages in the different countries and regions of Europe represent an important contribution to the building of Europe based on the principles of democracy and cultural diversity within the framework of national sovereignty and territorial integrity [it had agreed that special measures should be adopted] in favour of regional and minority languages ... [as] an expression of cultural wealth'.'75 Despite the obligatory genuflection towards national sovereignty, the protection of minority languages protects not only other European citizens, who speak, say, French in the Val d'Aosta, but also aliens whose languages or dialects are often spoken in European countries. Typically, we think of albanese.*76 No doubt, all these social and cultural rights are expensive, but they are always seen as necessary to
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attach the European citizen to the Union, just as liberal-socialism had argued. Indeed, it would not be inappropriate to see the position of the European Parliament as liberal-socialist, although it is dominated by conservative parties. In a recent draft Constitution for the Union, once again seen as necessary as unwritten Constitutions are regarded as too arbitrary, we find: explicit recognition of rights which are the basis of social citizenship: work, health, housing, education ... we thus have a text which refuses a purely procedural idea of the Constitution, and accepts fully a Constitution founded on values. Central to it is the figure of the citizen no longer built around an economic dimension alone, but directed at recovering the wholeness of his being in society. Only this citizen can make the European Union legitimate. And only starting from this consideration can the role of European institutions be clarified.77
If the same logic is in the draft Constitution as is in the liberalsocialist tradition, its task is much greater because of the deliberate devolution of power to a highly differentiated citizenry. This comes first from the introduction, where possible, of citizens' legislative initiatives and referenda, already found in many European member-state Constitutions, and notably in the much consulted Swiss model. These issues are under debate at present as to their implementation. What is not, is the right of foreigners to participate in public life at a local level guaranteed by a Convention of 1992 to that effect. In explaining that Convention, the arguments about migration, local residence and local autonomy, making the right to vote essential, were again advanced.78 In discussing local referenda the point was made that 'the advantages of semi-direct democracy for defence and promotion of minorities; the prevention and correction of abuse and excesses in municipal power and the affirmation of the supremacy of citizens in public life can be mentioned in particular'.79 While cautious, the general trend seems to be towards their acceptance by the European institutions. Obviously, this policy of more democracy everywhere poses enormous practical problems: the expense and strain of incessant elections at all levels; the need for absolute simplicity in proposals which are expected to emanate from the citizens themselves in many cases, particularly where local life style is affected by the pollution of the environment or town planning, both of which can arise in other states. The Europeans have therefore considered a significant innovation: the reintroduction of semi-direct democracy using modern technology. This is a notion decried by the thinkers of liberal-socialism as 'pie in the sky', and by American political scientists as inappropriate for complex modern technological decisions.80 We discussed this in chapter 7.
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The relevance of the European Union's experience is immediately obvious when we read Paul Keating's Vision for the Future. Mr Keating will not lead us into the twenty-first century but his views grosso modo are shared not only by the ALP but by the Liberal and National Parties. They differ on the details. The Vision for the Future tells us that if Australia is to take on the challenges it faces as a nation we need to be united as our own masters. These challenges, posed by 'our situation' in the world, mark a revolutionary change. Keating thus linked the need for a republic with a 'future [which] increasingly lies in our own region', that of Asia and the Pacific. Our success in that regional future depends on our success as a trading nation. To do this it must integrate into the region: 'this will be, incidentally, an integration that enhances rather than diminishes our national identity, and in which our national institutions and way of life are part of the contribution we can make to the success of the region and the region's culture'. Already this integration is a fact economically. But more is needed than bilateral trade agreements which keep Australia competitive and growing. The way forward lies through organisations like the Asia-Pacific Economic Cooperation forum which promotes 'regional trade liberalisation' and 'open regionalism'. Keating claimed: APEC encourages cooperative outcomes in which everyone is better off ... In other words, we should seek as our goal an integrated market which includes Australia and New Zealand, the ASEAN countries, the three Chinese economies, Korea, Japan and North America - a market of 2 billion people producing half the world's output, bound together with harmonised trade rules, harmonised investment rules, harmonised standards and certification, and an agreed way of settling disputes between members. This means a fairly elaborate system of legal rules and company practice. 81 Paul Keating could have been a European politician, a Jean Monnet or a Robert Schuman, promoting the Rome Treaty which started the European Economic Community in 1957. But, on the whole, he ignored that forty-year European experience of working out in practice, with many setbacks, errors and defeats, what is implied in such a project. In particular, there is little in his vision or those of our other political leaders, which suggests that they have learnt any lessons about the legal and political arrangements which have had to be made to accompany the economic liberalisation. 82 Paul Keating certainly kept his eyes on the road ahead, and a spate of government and private documents foresaw similar futures for Australia. But there was little map-reading by any of them. 83 Clearly, there are sometimes political problems about
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confronting the European experience. It is notable that Keating's vision talked of free movement of capital, goods, even ideas, but not of labour, unlike the Treaty of Rome. In fact, the crucial lesson of the European Union experience from the point of view of law and politics comes from the free movement of labour, guaranteed in the Rome Treaty. The effect of the massive flows of labour following the market was to reverse the trend towards a homogeneous population. Instead, throughout Europe there developed multi-ethnic populations. Up to 30 per cent of the population of a member country of the Union were foreigners, although the average, including legal and illegal populations, was 15 per cent. Moreover, these populations became much more transient. They did not intend to settle, naturalise or integrate, and certainly not if that meant renouncing their attachment to their countries of origin, to which they returned every vacation time. The flows are quite different from those of earlier migrations to countries of 'permanent settlement'. These populations of Turks in Germany, Portugese in France, Italians in the Low Countries, could not and did not share the cultures, languages or collective memories of their hosts. Given existing nationality and citizenship rules they were excluded from politics, thus living under laws which they did not make. It is difficult to claim to be a democracy in such circumstances. The experience of multiculturalism taught the Europeans a bitter lesson, that their legal and political arrangements, especially those of citizenship, would have to be changed. The prerequisite of belonging to the nation before citizen rights were granted had to be shed, and was in the Maastricht Treaty for local and European elections. It is now being considered for national elections as well. This would mean that, say, an Italian who did not speak French and had just arrived, could vote and stand in elections for the French national parliament, just as he can do so now in local elections or French elections for the European Parliament.84 This is a lesson not yet learnt here. It is too touchy an issue politically to envisage free movement or even liberalised movement of Asian labour into Australia, but outside government circles this is certainly seen as part of any projected regional economy of the future. It has been argued by Charles Stahl that we can anticipate 'the arrival of temporary foreign "low skilled labour on turnkey projects". This would particularly be the case with large infrastructure projects in remote areas where the cost of housing Australian labour would preclude such development. Relevant Australian authorities and trade unions would ensure that acceptable working conditions are enforced and that workers' contracts are honoured'. Other writers go further by insisting that such labour - which would clearly not become Australian - would have to have the right to vote to protect itself.85
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Europe's history in 1950-94 could provide a useful map to Australia's future if the regional economy is established. To make the European Union function required not only the elaboration of a rule of law and the institutions to apply it - the European Courts of Justice and of Human Rights - but an incrementally increasing number of Conventions and treaties which were observed and enforced, covering all aspects of social and political life. As we have seen above, and supplementary to, the nation-state whose sovereignty was clearly only preserved by acceptance of the new supra-national legal and political institutions, there has been created the European citizen, sovereign in a new dimension of liberal democracy in which national affect and associations are no longer primary. The trajectory of the European experience - the highway it has travelled already but which is our future - is one from nation-state jurisdictions to a regional jurisdiction and thence to a regional polity. Occasionally, it is recognised in Australia that if we follow the trajectory we will need to create a citizenry and institutions appropriate to it, and that there will have to be new standards and guides, not merely in economics and business law but in human rights and politics to complement and, perhaps replace, existing national standards, but they are not yet elaborated. 86 In the vast range of new standards which will be needed, there will be that which guarantees popular sovereignty. Usually we think of this as resting on the right to vote of all citizens. It is this which ensures the power 'from below' recognised by both jurists and political theorists as the essential criterion of a liberal democracy. As Norberto Bobbio, developing on Hans Kelsen's distinction, put it: 'the democracy of the "moderns" is that state in which the struggle against the abuse of power is conducted on two parallel fronts, against power from above in the name of power from below, and against concentrated power in the name of shared (distribuito) power'. 87 There are two main problems if Australia chooses to emulate the European Union. The first is that it has discarded to an impermissible degree its concern for democracy and human rights in the Asia-Pacific Economic Cooperation area to gain market share. The terrible record in such matters of our putative partners is illustrated in table 10. Australia has sought trade with China, Burma, Indonesia, Singapore and Malaysia, careless of their terrible human rights records. In 1995 the then Minister for Foreign Affairs, Gareth Evans, explained on television that East Timorese 'boat people' might not have refugee status because they held Portugese nationality. They had just anxiously asserted that they all had Indonesian passports and had fled what is a murderous tyranny. It was one of the last episodes in a very murky ALP past history of dealings with East Timor which goes back to the Whitlam
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Table 10 Classification of South-East Asian countries on the human rights scale (1991) Out of 40 New Zealand Australia Japan Papua New Guinea Hong Kong
36 33 32 30 26
South Korea Thailand Singapore
14 14 11
Malaysia Indonesia Vietnam China
9 5 5 2
Source: Human Development Report (Oxford University Press,
New York and Oxford, 1991).
government. Gough Whitiam has appeared a paragon of virtue in this book for his treatment of citizenship issues. It is a commentary on the impossibility of strong nationalism in a world of global responsibilities that his dealings with Indonesia over East Timor have not earned him the plaudits of the international community. Whitiam was a strong nationalist with a centraliser's dislike of drives for regional autonomy. This contradiction highlights how radical a rupture with former notions of citizenship is posed by a globalising world. A primary concern with the good of the national community encourages a state-to-state negotiation. Even the High Court, which was so progressive in the free speech and Teoh cases, has refused to accept that where the East Timor Gap Petroleum Treaties are concerned the legislative power of the Commonwealth is governed or constrained by the principles of international Conventions or law. Indeed, on such matters as the recognition of the sovereignty of another state, in this case, Indonesia's sovereignty over East Timor, it declares that it has no power to examine executive decisions.88 The readiness of Australia to turn a blind eye to breaches of human rights in the Asia-Pacific area is matched by a refusal by such countries to mend their ways. At the Third Strasbourg Conference on Democracy held in Canberra in 1992, which focused on the development of parliamentary institutions in the Asian Pacific regions, delegates were invited to adhere strictly to the Strasbourg Consensus of 1983, which is
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the basis of European understanding of democracy and human rights. 89 They would not. The conclusion of the Canberra conference was merely that: 'There is not a single unique democratic project. Different societies can favour different values; the existing models of democracy therefore cannot be imposed in a rigid manner in the societies of the Asian Pacific region'. 90 Further evidence of the resistance in the Asia-Pacific Economic Cooperation forum to democracy and human rights can be gauged from the incoherent and inconsistent statement of human rights issued at the world conference on human rights in Vienna in 1993.91 The Asia- Pacific area has thus become the only major part of the world to refuse to endorse even the principles of democracy and human rights as understood in this book. Conferences for Latin America and Africa, in Costa Rica and Dakar respectively, have already done so. Summed up, the Australians have done little or nothing to encourage the emergence of liberal-democratic polities in the Asia-Pacific Ecnomic Cooperation area. Unlike the Europeans, they do not make such a standard a perquisite for joining the regional free market. Sometimes, they argue - disingenuously, in the face of the best human rights theory - that to impose any conditions on trade with, or aid to, such regimes merely harms the poor and not the regime itself.92 Australian credibility as 'the good international citizen' has been severely damaged in recent years as a result, especially among minorities in the Asia-Pacific area. Overall, this means that Australia is doing little to alter the public context within which it wishes to operate economically, socially, legally and politically in the future. Its 'hands-off attitude encourages the survival of leaders in other polities who claim to espouse local traditions against 'Western' democracy and human rights. These often appear to be no more than a fabrication of recent date with no real claim to authenticity. Thus, in the case of Fiji, the 'ethnic cleansing' of Fijian Indians after the anti-democratic coup led by Sitiveni Rabuka was justified as a return to the 'Fijian way'. It is at least debatable whether this is a fabrication and that old traditions are not being recovered 93 but that cannot be tested for the degree of popular support those traditions might have within those communities. At present, precisely because these regimes are not democratic, or only return to democracy after the 'ethnic cleansing' (which begs the question), it is impossible to know whether in an act of self-determination populations might refuse democracy and human rights. The situation will thus continue to be as it is. One argument which needs to be scotched is the neo-developmentalist argument that Australia should not be too 'prescriptive' because when such nation-states enter the regional global market they will gradually adopt a rule of law and democracy. This may be true in the long run, and was certainly the premise of Kant's view
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about how the 'global citizen' would emerge and perpetual peace would become the norm. 94 However, in the shorter term the problem of culture clash remains even within the market place itself. As the idea of one big equal market remains, relatively speaking, 'pie in the sky' for the foreseeable future, and most societies are not expected to form part of the global society, intermediate norms for global regulation will be needed and even these are difficult to identify. 95 So, unlike the European Union where there exists common ground among member-states on democracy and human rights, and admission really depends on meeting minimum standards in that regard, Australia faces, and will face, an Asia-Pacific Economic Cooperation forum where there will be no common public norms. Negotiation across difference about citizen standards will be more difficult than in the European Union. These difficulties cannot be reduced to a mere technical problem like that which already exists within a multicultural nation-state, where the cultural difference can be gradually returned to the private realm, as most good Australian practice and theory suggests. A neutral political realm a la Kukathas cannot be expected in the regional polity. Unlike the nation-state where a claim to be a liberal-democracy already provides the context for debate about the polity and all voices have the potential to be heard, any APEC/regional polity of the future will have to have its basis negotiated with states who regard democracy and human rights as 'Western', that is, not neutral but Western procedures. Moreover, they will negotiate from positions of strength since Australia and New Zealand will be pygmies in power terms. Even Japan is expected to be dwarfed by China and its diaspora. It would be consoling to assume that these countries have 'evil' leaders who deny their people a preferred democratic choice in favour of human rights. This may be true in some cases and is often argued when East Timor is discussed. But it would be wiser to prepare for a worst-case scenario, rather than rely on a revived popular revolutionary theory in which the French Revolution is paralleled by a global revolution which institutes a democratic regime. Australia may have to face the problem of the 'clash of civilisations', which Samuel Huntington has stated will typify the global twenty-first century. If this happens then popular cultural differences will override any commitment to democracy and human rights by our neighbours. Huntington writes: The people of different civilisations have different views on the relations between God and man, the individual and the group, the citizen and the state, parents and children, husband and wife, as well as differing views of relative importance of rights and responsibilities, liberty and authority, equality and hierarchy. These differences are the product of centuries. They will not soon disappear. They are far more fundamental than differences among political
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ideologies and political regimes. Differences do not necessarily mean conflict, and conflict does not necessarily mean violence. Over the centuries, however, differences among civilisations have generated the most prolonged and the most violent conflicts.96
Even the regional economy and its free movement of capital, goods and labour will not end evening up inequalities in all available goods. There will be poor and rich; there will be pre-modern, modernising and post-modern states, and this means continuing antagonisms, jealousies and disagreements about collective goods. On the first level, any regional social safety net, which is the way such matters have been dealt with by liberal-socialist theory within a nation-state context, would mean that a rich Australia would have to pay, by giving up what is 'superfluous to needs'. But it is difficult to decide what that is when paupers and princes debate it.97 The conclusion is that a regional citizen along democratic lines will be difficult to construct. No electronic democracy can bridge cultural differences and value hierarchies which run so deep. When Australians embark on an examination of that problem, they do so from a post-modern vantage point. Only one-fifth of the world's population live in such societies as Australia's. The ways of thought appropriate to function in them are already so scientific and elitist that they are unfavourable to democratic thought. Most forward planning for the twenty-first century in post-modern societies already challenges democracy and human rights as we understand them. Some thinkers simply state that the technocratic elitism of the Singapore solution is the only possible solution for democracies faced with complexity of post-modernity and globalism.98 In other words, Asian anti-democrats have a Trojan horse inside our societies. It is at least probable that the regional polity, without which Australia cannot survive as a nation-state, will not be a liberal democracy. The consequent problems posed for an Australian liberal democracy in the twenty-first century are enormous. The Kantian ideal of men and women who 'dare to think' for themselves and to throw off the self-imposed tutelage by asserting their capacity for autonomous reason lies at the heart of our ideal of human dignity and belief that human happiness can be attained. It will have to come to terms with an ideal of Confucian origin that says that wisdom teaches men and women to fit in and that life is suffering. Our problem is that if we accept it, we accept what Montesquieu called despotism. Is it worth it to do so?
Notes
Introduction 1. B. C. Chaseling (Australian Council of Young Farmers) in Digest Australian Citizenship Convention (Canberra, 1965), p. 52. 2. M. Kammen, Spheres of Liberty, Introduction and passim. 3. Burke's Speeches and Letters on American Affairs (Everyman, London and Toronto, 1924), p. 91. 4. I. Kant, Critique of Pure Reason, p. 635. I follow the interpretation of Kant given in C. Friedrich (ed.), The Philosophy of Kant, Introduction. 5. See, for example, Junior Syllabus for Citizen Education (Board of Secondary School Studies, Queensland, November 1987); Education for Active Citizenship Australian Schools and Youth Organisations (AGPS, Canberra, 1988); Brian Howe, Renewing the Commonwealth: The Fourth Sambell Memorial Oration', P. Beilharz, 'Citizens and democrats', Australian Left Review, October 1991, pp. 17-19, pp. 30-1; 'Welfare and citizenship in Australia after World War Two: a parting of the ways', ibid., pp. 287-93; L. Jayasuriya, 'Citizenship and welfare', unpublished paper (Conference Beyond Economic Rationalism Alternative Futures for Social Policy, Perth, November 1992); J. Pixley/Citizen, worker or client? State, class and welfare' in M. Muetzelfeldt (ed.), Society, State and Politics in Australia; Citizenship and Employment: Investigating Post-Industrial Options; Active Citizenship Revisited - Report by the Senate Standing Committee on Employment Education and Training (March 1991); Australian Historical Studies, vol. XXV, no. 100, April 1993, pp. 357 ff; R. Watts, 'Fragment and riddle and dreadful accident: rethinking the employment and citizenship link', unpublished paper (Conference on Citizenship, Deakin University, October 1994); 'What is a citizen?' (Ideas for Australia, Lecture Series, 1994); How to be Australian (National Centre for Australian Studies, Monash University, 1994); A-M. Jordens, Promoting Australian Citizenship 1949-71; Australians All, Enhancing Australian Citizenship (Joint Standing Committee on Immigration of the Parliament of the Commonwealth, September 1994); Department of Immigration and Ethnic Affairs, Submission to the Joint Standing Committee on Migration Inquiry into Enhancing the Meaning of Australian Citizenship, 1994). 6. See, for example, A-M. Jordens, Redefining Australian Citizen' 1945-75. 7. S. Castles, M. Kalantzis, B. Cope, M. Morrissey (eds), Mistaken Identity, Multiculturalism and the Demise of Nationalism in Australia and the commentary by C. Kukathas (ed.), Multicultural Citizens: The Philosophy and Politics of Identity.
287
288
NOTES (PAGES 9 - 2 4 ) Parti From Subject to Citizen 1901-1996
1. J-J. Rousseau, 'Jugement sur le Projet de Paix Perpetuelle', Oeuvres completes, vol. II, pp. 348 ff; T. Hobbes, Leviathan, Part II, p. 277. 2. N. Bobbio, Rfuturo delta democrazia, pp. 5-6. 3. I. Kant, 'What is Enlightenment (1784)' in C. Friedrich (ed.), The Philosophy of Kant, pp. 132-40. 4. J. Camilleri a n d j . Falk, The End of Sovereignty: The Politics of a Shrinking and Fragmenting World; M. Horsman and A. Marshall, After the Nation-State Citizens: Tribalism and the New World Disorder.
Chapter 1 Chris Romanus Sum 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14.
15.
16. 17. 18. 19.
20. 21. 22.
Plato, The Protagoras and Meno, p. 54. Aristotle, The Politics, pp. 60-1, 169-71, 456-67. Aristotle, The Athenian Constitution, p. 50. See my 'Res publica and citizen' in J. Warden et al. (eds), Crown and Country: The Traditions of Australian Republicanism, pp. 161-75. See, for example, H. van Gunsteren, 'Notes on a theory of citizenship' in P. Birnbaum et al. (eds), Democracy, Consensus and Social Contract, p. 15, and F. Dallmayr (ed.), From Contract to Community, p. 15. Aristotle, Politics, pp. 169-72. Ibid., pp. 57-9. Ibid., p. 172. R. Filmer, Patriarcha. B. Bosanquet cited in W. F. Trotter, The Citizen and his Duties, p. 64; N. Bobbio makes much the same point in Stato, governo, societd per una teoria generale delta politica, pp. 18-20. van Gunsteren, cit. N. Bobbio, 'Nuova destra e cultura reazionaria negli anni ottanta', pp. 19-32 especially pp. 25-7. E. Renan, Qu'est-ce qu'une nation? et autres essaispolitiques, pp. 41, 42, 55. G. Noiriel, La tyrannie du national: Le droit d'asile en Europe 1793-1993, Part II, 'La construction sociale des identites nationales', pp. 84—156; B. Anderson, Imagined Communities, especially ch. 11; A. Smith, The Ethnic Origin of Nations, Part II; M. Wievorka, La democratie a Vepreuve: Nationalisme, populisme, ethnicite, Part I. N. Bobbio, Thomas Hobbes, pp. 3-4 and ff.; Aristotle, Politics, p. 56; for the family and communitarian model as it is used here, see M. Walzer, 'The distribution of membership' in P. Brown and H. Shue (eds), Boundaries: National Autonomy and its Limits, pp. 1 ff.; A. Maclntyre, After Virtue: A Study of Moral Theory. More generally, A. Davidson, 'The citizen who does not belong: multiculturalism, citizenship and democracy', and 'Citizenship, sovereignty and the identity of the nation-state' in P.James (ed.), Critical Politics. N. Bobbio, Ilfuturo delta democrazia, pp. 5-6. B. Constant, Political Writings, B. Fontana (ed.), pp. 309 ff especially pp. 311, 316, 323, 326. Ibid. B. Constant, Fragments d'un ouvrage abandonne sur la possibility d'une constitution republicaine dans un grand pays, passim, pp. 147, 152-3, 183, 267, 279, 294-311, 319. Compare the contemporary J. de Maistre, De la souverainete du peuple: Un anti-contrat social which reveals how far Constant was from a conservatism hostile towards democracy of the sort proposed or attributed to Rousseau. Davidson, 'Res publica and citizen' in Warden et al., Crown and Country. Bobbio, Hobbes, p. 7. B. Barber, Strong Democracy: Participatory Politics for a New Age, D. Miller, Market, State
NOTES (PAGES 25-35)
23. 24. 25. 26.
27. 28. 29. 30.
31.
32. 33.
34. 35. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45. 46.
289
and Community Theoretical Foundations of Market Socialism, Part II, 'The ethical significance of nationality', Ethics, no. 98, July 1988, pp. 647-62; C. Kukathas (ed.), Multicultural Citizens, Introduction and ch. 8; M. Wievorka, cit. Bobbio, Rfuturo della democrazia, p. 15. A useful collection of relevant parts of such Constitutions is in F. Fabricius, Human Rights and European Politics, pp. 153-72. Aristotle, Politics, p. 61; The Ethics, Introduction and p. viii. J J . Rousseau, Saggio sulVorigine delle lingue, pp. 16-17, 80-1, 107-8; J. Starobinski, 'Rousseau and the origin of languages' inJ-J. Rousseau: i, pp. 304-22; J-J. Rousseau, Oeuvres completes, Part II, pp. 524, 588. See also my 'Res publica and citizen', cit, passim especially pp. 164-5. Rousseau, Oeuvres completes, Part II, pp. 522-3. Constant, Fragments, cit, Introduction, pp. 32-3, 300; Political Writings, cit, p. 318. I. Kant, Political Writings, p. 137. For a similar reading see K. Marx, On theJewish Question: in Collected Works, Vol. Ill, pp. 146-75; Bobbio, Hobbes, passim and p. 11; C. B. MacPherson, The Political Theory of Possessive Individualism. For sources, see T. Hobbes, A Dialogue between a Philosopher and a Student of the Common Laws of England, pp. 54 ff.; Leviathan, ch. 4; J. Locke, Essay concerning Human Understanding. See, for example, T. H. Green, Lectures on the Principles ofPolitical Obligation and other Writings, Introduction and pp. 13 ff., 159-212; L. T. Hobhouse, Liberalism, chs VI, VII, IX, especially pp. 77, 87: 'This, it will be said, is not Liberalism but Socialism. Pursuing the economic rights of the individual we have been led to contemplate a Socialistic organisation of industry. But a word like Socialism has many meanings, and it is possible that there should be a liberal socialism, as well as a Socialism that is illiberal'. J. S. Mill, Utilitarianism, Liberty and Representative Government, p. 187. Ibid., pp. 208-10; 'Chapters on socialism' in On Liberty with the Subjection of women and Chapters on Socialism (S. Collini ed., Cambridge University Press, Cambridge, 1991), especially pp. 274-9; F. de Sanctis, Mazzini e la scuola democratica, p. 6 cited by N. Bobbio, Due secoli di democrazia europea, pp. 18-19. See my 'Norberto Bobbio and the dilemmas of liberal socialism'. Rousseau, Oeuvres completes, Part II, pp. 276-308; L. Colletti, From Rousseau to Lenin, Part III. N. Bobbio, Italiafedele e UMondo di Gobetti, passim, and Maestri e compagni, especially ch. 5; C. Rosselli, Socialismo liberale, pp. 186 ff., Quadrerni di Giustizia e libertd, p. 1 ff.; Giustizia e libertd, 14 May 1937. Typical of such views are those of the influential J. Talmon, The Origins of Totalitarian Democracy. See also I. Berlin, who relies on Constant in his 'Two concepts of liberty' in Four Essays on Liberty, pp. 118 ff. Bobbio, Rfuturo della democrazia, pp. 6-7, 16. T. H. Marshall, Citizenship and Social Class and other Essays. See also A. Theophanous, Understanding SocialJustice: an Australian Perspective, pp. 20 ff. D. Held, Political Theory and the Modern State, ch. 7; J. Barbalet, Citizenship; B. Turner, Citizenship and Capitalism and 'Outline of a theory of citizenship', pp. 189-217. M. Roche, Rethinking Citizenship Welfare, Ideology and Change in Modern Society, p. 35 and Part II. T. P. Taswell-Langmead, English Constitutional History from the Teutonic Conquest to the Present Time, pp. 550-3, 660-7. This reading owes much to N. Bobbio 'II modello giusnaturalistico' in Hobbes, cit., pp. 3-26, especially pp. 3-4. J. Locke, A Second Treatise on Government, ch. 6. E. G. J. Dunn, 'The concept of "trust" in the politics of John Locke' in R. Rorty, J. B. Schneewind and Q. Skinner (eds), Philosophy in History: Essays on the historiography of Philosophy, pp. 279-301 especially p. 281; compare Aristotle, Ethics, Book 8. J. Locke, 'A letter concerning toleration' in Works, p. 40: 'The business of laws is not to provide for the truth of opinion, but for the safety and securing of the Commonwealth and for every particular man's goods and person ...'.
290 47. 48.
NOTES (PAGES 35-6) E. Gellner, Nations and Nationalism. See on this A. Smith, The Ethnic Origins of Nations and National Identity, p. 14;
H. Bhabha, Nations and Narration, p. 1: 'Nations like narratives, lose their origins in the mists of time and only fully realise their horizons in the mind's eye'; M. Wievorka, La democratie a Vepreuve: Nationalisme, populisme, ethnicite. 49. J. S. Mill, Utilitarianism, Liberty and Representative Government, p. 362. 50. Thucydides The Peloponnesian War, pp. 116-17: 'Many of those who have spoken here in the past have praised the institution of this speech at the close of our ceremony. It seemed to them a mark of honour to our soldiers who have fallen in war that a speech should be made over them. I do not agree. These men have shown themselves valiant in action, and it would be enough, I think, for their glories to be proclaimed in action, as you have just seen it done at this funeral organised by the state. Our belief in the courage and manliness of so many should not be hazarded on the goodness or badness of one man's speech. Then it is not easy to speak with a proper sense of balance, when a man's listeners find it difficult to believe in the truth of what one is saying. The man who knows the facts and loves the dead may well think that an oration tells less than what he knows and what he would like to hear: others who do not know so much may feel envy for the dead, and think the orator overpraises them, when he speaks of exploits that are beyond their own capacities. Praise of other people is tolerable only up to a certain point, the point where one still believes that one could do oneself some of the things one is hearing about. Once you get beyond that point, you will find people becoming jealous and incredulous. However, the fact is that this institution was set up and approved by our forefathers, and it is my duty to follow the tradition and do my best to meet the wishes and the expectations of every one of you. 'I shall begin by speaking about our ancestors, since it is only right and proper on such an occasion to pay them the honour of recalling what they did. In this land of ours there have always been the same people living from generation to generation up till now, and they, by their courage and their virtues, have handed it on to us, a free country. They certainly deserve our praise. Even more so do our fathers deserve it. For to the inheritance they had received they added all the empire we have now, and it was not without blood and toil that they handed it down to us of the present generation. And then we ourselves, assembled here today, who are mostly in the prime of life, have, in most directions, added to the power of our empire and have organised our state in such a way that it is perfectly well able to look after itself both in peace and in war. I have no wish to make a long speech on subjects familiar to you all: so I shall say nothing about the warlike deeds by which we acquired our power or the battles in which we or our fathers gallantly resisted our enemies, Greek or foreign. What I want to do is, in the first place, to discuss the spirit in which we faced our trials and also our constitution and the way of life which has made us great. After that I shall speak in praise of the dead, believing that this kind of speech is not inappropriate to the present occasion and that this whole assembly of citizens and foreigners may listen to it with advantage. 'Let me say that our system of government does not copy the institutions of our neighbours. It is more the case of our being a model to others, than of our imitating anyone else. Our constitution is called a democracy because power is in the hands not of a minority but of the whole people. When it is a question of settling private disputes, everyone is equal before the law; when it is a question of putting one person before another in positions of public responsibility what counts is not membership of a particular class, but the actual ability which the man possesses. No one, so long as he has it to be of service to the state, is kept in political obscurity because of poverty. And, just as our political life is free and open, so is our day-to-day life in our relations with each other. We do not get into a state with our next-door neighbour if he enjoys himself in his own way, nor do we give him the kind of black looks which, though they do no real harm, still do hurt people's feelings. We are free and tolerant in our private lives; but in public affairs we keep to the law. This is because it commands our deep respect. We give our obedience to those whom we put in positions of authority, and we obey the laws themselves, especially those which are for the protection of the oppressed, and those unwritten laws which it is an acknowledged shame to break.'
NOTES (PAGES 36-49)
291
51. E. A. Cohen, Citizens and Soldiers: the Dilemmas of Military Service, pp. 117-18. 52. Cited in ibid., p. 121. 53. E. Weber, From Peasants to Frenchmen: the Modernisation of Rural France 1870-1914 especially ch. 17; see also the famous statement that 'We have made Italy, now we must make the Italians'. 54. B. Anderson, Imagined Communities. 55. M. Pattarin, L 'Anima del Risorgimento italiano: Documenti letterari del Risorgimento del 1815 al 1861, p. 395. 56. On this, see the discussion in // Manifesto cited in A. Davidson, 'Italian from provincial to national', unpublished paper presented to the Lingua Italiana conference, Comitato Assistenza Italiani (CO.AS.IT), Melbourne, December 1994. 57. For such photographs see A. de Jaco (ed.), // brigantaggio meridionale, passim. 58. See W. Humboldt, Idee per un saggio sui limiti dello stato, pp. 62—6; cited in P. Sack (ed.), Pacific Constitutions, p. 18; cited in F. A. Bland, 'Parliamentary government and liberty' in Australian Institute of Political Science, Liberty in Australia, p. 171. 59. Ibid. 60. See N. Bobbio, Liberalismo e democrazia, ch. 5. 61. C. Schmitt, La notion du politique et la theorie du partisan, pp. 65-8 at pp. 66-7: 'The specific difference of politics from which come actions and motives in politics, is the discrimination between friend and enemy ... The political enemy will not necessarily be bad in the moral order or ugly in the aesthetic order, he will not necessarily play the role of a competitor at the economic level, it will on occasion appear advantageous to conduct business with him. It is simply that he is the other, the foreigner, and it suffices, to define his nature, that he be through his very existence and in a particularly strong sense the other being, foreign, and such that in the end conflicts with him can be possible which can not be resolved either by an ensemble of general norms which are establised in advance, nor by the decision of a third party who is supposedly not involved and impartial'. See also B. Willms, 'Politics as politics: Carl Schmitt's Concept of the Political and the tradition of European political thought', pp. 371-83; C. Mouffe (ed.), The Return of the Political, passim especially Introduction and ch. 8. 62. It is clear that the notion of politics as an autonomous realm can be traced back to Machiavelli and is essential to a liberal-democratic theory of citizenship. Contra J. Pocock, The Machiavellian Political Moment and van Gunsteren, cit. 63. The Ventotene Manifesto is in W. Lipgens (ed.), Documents on the History of European Integration, vol. Ill, pp. 471-89. 64. G. Noiriel, La tyrannie du national: Le droit d'asile en Europe 1793-1993, pp. 84-9. 65. Calvin's Case 7 Co Rep. 2a, 77 ER 379; Taswell-Langmead, English Constitutional History, pp.673-5n. 66. See J. Stewart, A Documentary Survey of the French Revolution, pp. 233, 458-9.
Chapter 2 From Subject to Citizen I: to 1948 1. See 'What is a citizen?' in People Power Teacher Pack. It is notable that this was intended for use with If Blood Should Stain the Wattle, another teacher pack with a strongly legendary history of Australia. 2. A-M. Jordens, Promoting Australian Citizenship 1949-71, p. 1. 3. See J. Stewart, A Documentary Survey of the French Revolution, pp. 233-4. The clear statement that sovereignty lay in the nation (p. 234) was a deliberate departure from the British law that sovereignty is in the monarch in parliament. 4. See A. Davidson, The Invisible State: The Formation of the Australian State 1788-1901. 5. Ibid. 6. F. A. Bland, 'Does totalitarianism menace Australian democracy?', pp. 65-6. 7. CPD, XTV, 1903, p. 1708. 8. W. Vramplew (ed.), Australian Historical Statistics, p. 13. 9. I do not agree with A. Smith, The Ethnic Origins of Nations, p. 27 that language is not absolutely central to ethnic self-identification.
292 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26.
27. 28. 29. 30. 31. 32.
33. 34. 35. 36. 37. 38. 39. 40.
NOTES (PAGES 4 9 - 7 4 ) Cited in B. Wannan, The Wearing of the Green: The Lore, Literature, Legend and Balladry of the Irish in Australia, pp. 197-8. T. Keneally, Our Republic, pp. 12-13. M. McKenna, 'Tracking the Republic' in J. Warden et al. (eds), Crown Country, pp. 20-1. Individual and Democratic Rights: Report of the Advisory Committee to the Constitutional Commission, p. 1 and passim. Davidson, The Invisible State, passim. Official Record of the Debates of the Australian Federal Convention, vol. I, p. 2002; Whereas the People... Civics and Citizenship Education Report of the Civics Expert Group, p. 3. For the rest of this section see Davidson, The Invisible State. Stewart, A Documentary Survey of the French Revolution, pp. 458-9. Ex parte Lau You Fat, (1888) 9 NSWR 269. C. Parry, Nationality and Citizenship Laws of the Commonwealth and of the Republic of Ireland , pp. 528-50; M. Pryles, Australian Citizenship Law, p. 34. Parry, Nationality and Citizenship Laws, pp. 557 ff. A-M. Jordens, Promoting Australian Citizenship, p. 3. Australian Constitutional Commission, First Report of the Constitutional Commission, Summary, May 1988, vol. 1. p. 16, and pp. 189 ff. especially pp. 232-4, 244. McArthurv. Queensland (1920) 28 CLR 530; fames v. Commonwealth, (1936) 55 CLR 1 at 58; Gatwickv. Johnson (1945) 70 CLR I. For s. 117 see Davies and Jones v. State of Western Australia (1904) 2 CLR 29. Adelaide Company of Jehovah's Witnesses v. Commonwealth, (1943) 67 CLR 116 at 126; Krygierv. Williams, (1912) 15 CLR 366. Ex parte Walsh; re Yates (1925) 37 CLR 32; for Kisch and the other cases see B. Gaze and M.Jones, Law, Liberty and Australian Democracy, pp. 191—2. R. McCallum and R. R. S. Tracey, Cases and Materials on Industrial Law in Australia, pp. 224—5; see also S. Macintyre and R. Mitchell (eds), Foundations of Arbitration: The Origins and Effects of State Compulsory Arbitration 1890-1914, especially pp. 110-12. McCallum and Tracey, Cases and Materials on Industrial Law, p. 291: 'The 1953 Wage decision said this: The 1930-31 judgment was the first to contain ... a predominant principle of basic wage assessment, namely the principle that the level of wages, and of the basic wage in particular, must be such that economy can sustain'. CPD, XIV, 1903, p. 1612. Ibid., p. 1609. Ibid., p. 1707. Ibid., pp. 1920-1. CPD, 1948, p. 3250. Ibid., p. 3267. Mr G. W. A. Duthie said: 'In a real sense Australia is now closer to Great Britain than ever before. I regard the British Empire as a family of nations. The term "family" conjures up in our minds a relationship built upon mutual love and respect for each component part of that family. It matters not that the members of the family have different Christian names. Although twelve children of a family all have different Christian names, they are members of the family. It is of no consequence that they may leave their native place and take up residence in other parts of the world'. Ibid. See A-M. Jordens, Redefining 'Australian Citizen' 1945-15, pp. 1-2 for the relevance of the Anzac legend to Australian citizenship. V. Palmer, National Portraits (Melbourne University Press, Melbourne, 1940), R. Ward, A Nation for a Continent: The History of Australia 1901-1975 (Heinemann, Melbourne, 1977). P. R. Stephensen, The Foundations of Culture in Australia (London, 1936). H. Anderson (ed.), Tocsin: Radical Arguments against Federation 1897-1900, p. 17. J. Bryce, Promoting Good Citizenship, (Houghton Mifflin, Chicago, 1909). Ibid., pp. 6-7. Ibid., pp. 31,57.
NOTES (PAGES 74-87) 41. 42. 43. 44. 45. 46. 47. 48. 49. 50. 51. 52. 53. 54. 55. 56. 57. 58.
293
W. Murdoch, The Australian Citizen: An Elementary Account of Civic Rights and Duties, (Whitcombe and Tombs, Melbourne, 1916), see also 1926-27 edn, pp. 214, 222. Ibid. (1916 edn), pp. 237. A. Deakin, 'What is liberalism?' in Y. Thompson et al., Australian Liberalism, The Continuing Vision (Liberal Forum, Melbourne, 1986), pp. 2-5. P. Board, 'Australian citizenship', pp. 196-200. Ibid., p. 198. Ibid., p. 200. Murdoch, The Australian Citizen, p. 224: 'Every grown-up person has a vote for the Commonwealth Parliament; no-one has more than one vote; all grown-up people have exactly equal power in choosing representatives'. H. Braddon, Essays and Addresses: Historical, Economic, Social, pp. 161-79. Bland, 'Does totalitarianism menace Australian democracy?', p. 67. Ibid.; Bland, 'Post-war constitutional reconstruction', passim especially pp. 143-4. I. D. Marshall and A. Hoy, Civics for Australian Schools (Lothian Book Co., Melbourne and Sydney, 1917). Ibid., chs 1-3, pp. 30, 33, 35, 49. Ibid., p. 96. Ibid. Ibid., p. 103. Ibid., p. 68; see also Covenant of the League of Nations (1919), Article XII. Marshall and Hoy, Civics for Australian Schools, p. 124. Vision and Reality: The Centenary History of State Education in Victoria (Education Department, Victoria, 1973), vol. I, pp. 465, 481; there is a short account of civics teaching in Whereas the People, pp. 161-71; Alice Hoy also summed up her views in 1934 in A. Hoy and W. Forsyth (eds), Report on the Teaching of History and Civics in Victorian Secondary Schools (Melbourne University Press and Oxford University Press, Melbourne, 1934). While there was the customary confusion between the two disciplines, she noted the lack of practical relevance of civics education because it was taught by history teachers and suggested role-playing games, excursions to parliament, the courts, etc. (pp. 43-5). Her conclusion was that the teaching had very little real effect.
Chapter 3 Nationality and the Citizen II: 1948-1986 1. S. Castles et al., Mistaken Identity: Multiculturalism and the Demise of Nationalism in Australia, pp. 171. 2. K. Anderson and R. Garnaut, Australia's Protectionism: Extent, Causes, and Effects, pp. 16-17. 3. Census 1981; DIEA, Consolidated Statistics No. 13 (AGPS, Canberra, 1982); W. Vramplew (ed.), Australian Historical Statistics, pp. 15-17, 22. 4. Castles, Kalantzis, et al., ch. 5; S. Castles and M. Miller, The Age of Migration: International Population Movements in the Modern World, especially ch. 5. 5. C. Stahl et al., Global Population Movements and their Implications for Australia, p. 92. 6. S. Castles, The Challenge of Multiculturalism: Global Changes and Australian Experience, p. 8. 7. S. Castles, M. Kalantzis et al., The Bicentenary and the Failure of Australian Nationalism, P-6. 8. See, E. Zaretsky, 'Identity theory, identity politics: the separation between the public and the private' in P.James (ed.), Critical Politics, pp. 14-15. 9. R. Rorty, 'Freud and moral reflection' in his Essays on Heidegger and Others: Philosophical Papers, pp. 143-63. 10. E. G. Whitlam, The Whitlam Government 1972-1975, p. 497. See also for original, E. G. Whitlam, 'The issues: health, housing, education', pp. 8-9. 11. P. Bosi, Farewell Australia, pp. 14-15.
294
N O T E S (PAGES 8 7 - 9 7 )
12. Castles, The Challenge of Multiculturalism, cit.; S. Castles, 'L'Europe a-t-elle quelque chose a apprendre de l'Australie?', pp. 38-49. 13. A-M. Jordens, Promoting Australian Citizenship, p. 8. 14. DIEA, Submission to the Joint Standing Committee on Migration Inquiry into enhancing the Meaning of Australian Citizenship, pp. 3, (henceforth: Submission). See also Statutes of The Commonwealth of Australia. 15. See the photographs of Australian passports inj. Jupp (ed.), The Australian People: an Encyclopedia of the Nation, its People and Their Origins, p. 899. 16. DIEA, Submission, pp. 3-5. 17. Castles, Kalantzis et al., Mistaken Identity, pp. 169-70. 18. DIEA, Submission, table 7. 19. C. Parry, Nationality and Citizenship Laws of the Commonwealth and of the Republic of Ireland, p. 575. 20. DIEA, Submission, pp. 22-3. Canada requires three years, and the United States five years, of residence before an application for citizenship can be made. The latter also excludes aliens on 'moral' and 'political' grounds. 21. A-M. Jordens, Redefining 'Australian Citizen', p. 3. 22. Parry, Nationality and Citizenship Laws, p. 603. 23. CPD (S), vol. 189, pp. 508-9, cited in Jordens, Promoting Australian Citizenship, p. 3. 24. CPD (S), vol. 9, p. 943 (25 October 1956) cited in ibid., p. 7. 25. Jordens, Redefining 'Australian Citizen', pp. 5-6. The public attitudes in favour of British migration are discussed in Jupp (ed.), The Australian People, p. 935. In 1956, 52 per cent of those surveyed still stated that all or most immigrants should be British. 26. Jordens, Redefining 'Australian Citizen', p. 4. 27. Cited in Whitlam, The Whitlam Government, p. 489. 28. In fact, Chifley sold the policy to the labour movement by suggesting that it was a way of keeping Asians out, so one opening also involved another racist closure: L. Crisp, Ben Chifley, p. 320. 29. DIEA, Submission, table 1. 30. Jordens, Promoting Australian Citizenship, p. 20. 31. See, for example, Jurgen Tampke (ed.), Wunderbar Country: Germans Look at Australia 1850-1914, pp. 1-56. 32. M. Lake, 'Between old worlds and new: feminist citizenship, nation and role, the destabilisation of identity', in C. Daley and M. Nolan (eds), Suffrage and Beyond, pp. 277-95. 33. B. Fitzpatrick, The Australian People 1788-1945, pp. 241-2; D. Watson, Brian Fitzpatrick: A Radical Life, especially chs 4 and 5. 34. B. Fitzpatrick, The Australian Commonwealth (Cheshire, Melbourne, 1956), p. 145, see also ch. VIII. 35. A. Curthoys andj. Merritt (eds), Australia's First Cold War 1945-53, vol. I, Society, Communism and Culture, ch. 7 and passim. 36. V. Berger (ed.), Case Law of the European Constitution of Human Rights, 2 vols, 1989 ff., and D. Jackson, Judging Human Rights: the Formative Years of the European Constitution of Human Rights, 1959-89, paper presented to International Political Studies Association XVth World Congress, Buenos Aires, 1996, Appendix A. 37. Bumsv. Ransley, (1949) 79 CLR 101 per Latham CJ at 110; Rv. Sharkey, (1949) 79 CLR 121 per Latham CJ at 141. 38. Australian Communist Party v. Commonwealth (1951) 83 CLR 1. 39. L. Webb, Communism and Democracy in Australia, p. 62 typified the action this way: 'Following the road that led to the horrors of Belsen ... It is the Hitler technique over again. First the Reds, then the Jews, then the trade unions, then the Social Democratic parties, then the Roman Catholic Centre Party, the Roman Catholic and Lutheran Churches'. 40. See R v. Richards', ex parte Fitzpatrick and Browne, (1954) 92 CLR 157; (1955) 92 CLR 171. Section 49 reads: 'The powers, privileges and immunities of the Senate and of the House of Representatives, and of the members and committees of each House, shall be such as are declared by the Parliament, and until declared shall be those of the Commons House of Parliament of the United Kingdom, and of its members and
N O T E S (PAGES 9 7 - 1 0 8 )
295
committees, at the establishment of the Commonwealth'. See also House of Represen-
41. 42. 43. 44. 45. 46. 47. 48. 49. 50. 51. 52. 53. 54. 55. 56. 57. 58. 59. 60. 61.
62. 63. 64.
tatives Parliamentary Papers, 9 June 1955, pp. 1616-17; R. Menzies, Afternoon Light: Some Memories of Men and Events, pp. 298-303. E. Campbell and H. Whitmore, Freedom in Australia, chs 11-13. R. Menzies, Central Power in the Australian Commonwealth, chs 3 and 4. Ibid., p. 54. Ibid., p. 154. See, for example, A. Davidson, 'Republicanism and democratic reform' in W. Hudson and D. Carter (eds), The Republicanism Debate, ch. 6. Whitlam, The Whitlam Government, p. 496. Ibid., p. 503; Jordens, Redefining 'Australian Citizen', p. 39; Grassby was increasingly correct. See the table in Jupp (ed.), The Australian People, p. 127. E. G. Whitlam, On Australia's Constitution, pp. 5-6; Conference on Migrant Taskforces Objectives - Citizenship and Settlement Policy DIEA P323, 623099 GRA c.l, p. 2. Whitlam, On Australia's Constitution, pp. 199-200. Whitlam, The Whitlam Government, passim. Ibid., p. 677. Ibid., pp. 653. Bistricicv. Rokov (1976) 11 ALR 129 at 139-140. R v. Burgess; exparte Henry, (1936) 55 CLR 608. Evatt had attempted this in that case but the majority was not in agreement with him: at 683-4. Compare Airlines of New South Wales Pty Ltdv. State of New South Wales (1965) CLR 84 with New South Wales v. Commonwealth (1975) 135 CLR 337; Koowartay. Bjelke-Petersen (1982) ALJR 625; Tasman Dams Case (1983) 158 CLR 205. J. Kerr, Matters for Judgment: An Autobiography (Sun Books, Melbourne, 1978). See especially the letter from Menzies of 19 November 1975 to Kerr endorsing the dismissal. See Ethnic Affairs Commission, NSW, Participation. P. Medding, From Assimilation to Group Survival: A Political and Sociological Study of An Australian Jewish Community; Smolicz in Jupp (ed.), The Australian People, pp. 868 ff. Jordens, Promoting Australian Citizenship, p. 27; for the statistics about rates see DIEA, Submission, table 3. The application rate continued to fall until 1972 see Jordens, Ibid., p. 28. For a recent account see S. Brawley, The White Peril: Foreign Relations and Asian Migration to Australasia and North America 1919-1978. Jordens, Promoting Australian Citizenship, p. 30. Compare the editorial in SMH, ^ J a n uary 1965: 'The fact is that [the] ... reluctance by people from Europe to sever all ties with their countries of origin, and become Australian officially, has been a subject of concern and inquiry almost since the great postwar immigration drive was launched ... It may be that the Oath of Allegiance to the Queen which candidates are required to take at naturalisation ceremonies confuses some of them. It may seem to them that they will take on a kind of dual nationality - British and Australian. The nature of the British Commonwealth in the modern age and the intricacies of the Statute of Westminster are not after all easy for any layman to understand, let alone a person with no traditional links with the British Isles'. Advertiser, 9 August 1968. SMH, 15 February 1974. See D. Walker in Jupp (ed.), The Australian People, pp. 864-8 for a survey of this literature. An early example, supporting Morawetz's view, is Marcus Clarke, writing at the end of the nineteenth century: 'In another hundred years the average Australian will be: a tall, coarse, strong-jawed, greedy, pushing, talented man, excellent in swimming and horsemanship ... His religion will be a form of Presbyterianism; his national policy on democracy tempered by the rate of exchange ... His wife will be a thin, narrow woman, very fond of dress and idleness, caring little for her children, but without sufficient brainpower to sin with zest. The Australians will be a fretful, clever, perverse, irritable race ... selfish, self-reliant prone to wander, caring little for home ties ... freed from the highest burden of intellectual development'.
296 65. 66. 67. 68. 69. 70. 71. 72. 73. 74.
NOTES (PAGES 1 0 9 - 2 1 ) Fitzpatrick, The Australian People 1788-1945, passim', Watson, Brian Fitzpatrick; K. Buckley, All About Citizens' Rights. F. Bland (ed.), Changing the Constitution, Introduction and pp. 17-19. See E. J. B. Foxcroft, T h e changing balance of the Commonwealth', pp. 184, 193. Dr P. W. E. Curtin writing in Public Administration, December 1948, p. 197. Australian Institute of Political Science, Liberty in Australia, pp. 150-1. Ibid., pp. 23-4. Ibid., p. 63. For example, Burns v. Ransley (1949) 79 CLR 101 per Latham CJ at 110; Australian Communist Party v. Commonwealth 1 at 129. Australian Institute of Political Science, Liberty in Australia, pp. 172, 174. F. Eggleston, Reflections of an Australian Liberal, pp. 17-18, 202, 216-17, 223, 224.
Chapter 4 From Subject to Citizen III: 1983-1996 1. Australia. Migrant Services and Programs, Report on the Review of Post-Arrival Programs and Services for Migrants, 9.1, 9.6; S. Castles et al., Mistaken Identity, pp. 68-9, 120 ff. 2. Totaro, in Ethnic Affairs Commission, NSW, Participation, pp. 1-3. 3. Australians as a whole opposed militant union activity even in the 1990s. See C. Bean, 'Are Australian attitudes to government different?: a comparison with five other nations' in F. Castles (ed.), Australia Compared: People, Policies and Politics, p. 79. 4. G. Venturini (ed.), Five Voices for Lionel: The Lionel Murphy Memorial Lectures, p. 97; on his experience as Trade Practices Commissioner in 1973-74 see Venturini, Malpractice: The Administration of the Murphy Trade Practices Act. 5. One of the tasks of the Law Reform Commission, set up in 1973 under Michael Kirby, was to consider such issues. B. Gaze and M. Jones, Law, Liberty and Australian Democracy, ch. 12; G. Bird, The Role of Law as it Operates in a Multicultural Society: the emblematic case is Mojfa\. Regina, (1977) 13 ALR 225. Sir James Gobbo, 'Multiculturalism and the law', address to the Eggleston Society, Savage Club, Melbourne, 15 March 1995 makes clear that the openness has reversed in recent years. 6. Ibid.; and I. Marsh (ed.), Governing in the 1990s: An Agenda for the Decade, ch. 2. 7. R. Gregory in Castles (ed.), Australia Compared, ch. 6, especially pp. 105-7. 8. For example, see E. I. Daes, Confidential Report, Uniting Church, Sentenced to Silence. This report was carefully hushed up by the ALP government when first made. See also C. Connolly, 'Australia's human rights record', pp. 6-9. Australia was ranked only 73 in the world for the number of international Conventions signed, and rated below all European Community countries with the exception of Spain with regard to human rights offences in 1992. See C. Humana (ed.), World Human Rights Guide. See the recent case of Portugal v. Australia, ICJ, (General List no. 84, 30 June 1995). By 1995 visitors like Pierre Sane, head of Amnesty International's Secretariat, were complaining that the Prime Minister (Paul Keating) would not even meet him to talk about human rights issues. The Candle, 18 December 1994 to January 1995: 'They are finding it increasingly difficult to believe that he gives the issue any weight at all'. 9. G. Blainey, All for Australia, pp. 158-60. 10. B. Galligan et al., The Australian Rights Project as reported in SMH, 24 July 1993. 11. S. Castles, M. Kalantzis et al., The Bicentenary and the Failure of Australian Nationalism, pp. 4, 6-7. 12. CPD (R), 1983, p. 3367. 13. Ibid., p. 3368. 14. Age, 28 December 1992. 15. DIEA, Australian Citizenship - No. 7 Becoming a Citizen - what you should know, 996i. 16. Ibid., No. 3, Citizenship by Grant (naturalisation), 976i.
17. CPD (R), 1982, p. 2356. 18. Ibid., p. 2360.
NOTES
(PAGES 122-31)
297
19. Ibid., p. 2369-70. 20. J. Jupp (ed.), The Australian People, p. 869; Totaro, in Ethnic Affairs Commission, NSW, Participation, ch. 3; Australia, Migrant Services and Programs, Report on the Review of Post-Arrival Programs and Services for Migrants; Ital-UIL Australia/ Victorian Law Foundation, La legge e il cittadino, especially pp. 43-8. 21. Ital-UIL Australia/Victorian Law Foundation, La legge, pp. x-xi. 22. I. Moss, The State of the Nation: A Report on People of non-English Speaking Backgrounds, pp. 56-7. 23. Loukas v. Young, (1968) 3 NSWLR 549; Moffa v. Regina, (1977); M. Kirby, Reform the Law, chs 5 and 7; Legislative Assembly of the Northern Territory, Sessional Committee in Constitutional Development, Discussion Paper no. 4, Recognition of Aboriginal Customary Law. 24. J. Scutt (ed.), Lionel Murphy: A Radical Judge, p. 49. 25. G. Evans, 'An Australian bill of rights', pp. 4—35; for the ALP view of all these issues see G. Evans (ed.), Law, Politics and the Labor Movement, especially p. 2 where Lionel Murphy wrote: 'The law and its procedure are in most respects out of date, inefficient and often unjust. Everyone knows this - except 90 per cent of the Bar and 95 per cent of the judges'. 26. For example, M. Gray, 'A Victorian bill of rights: judicial review and other issues', pp. 74-90. 27. See article 2047 of the Italian civil code. 28. The best formulation, discussed in chapter 1, is that of N. Bobbio, II Futuro della democrazia, pp. 4-7. 29. Davidson and Spegele (eds), Rights, Justice and Democracy in Australia, Introduction. 30. Australian Constitutional Commission, Report on Individual and Democratic Rights, p. 15; Australian Constitutional Commission, Constitutional Commission Final Report Summary, p. 34. 31. L. Cooray (ed.), Human Rights in Australia, p. 20; A. Maclntyre, Virtue: A Study of Moral Theory. 32. For example, see G. Evans, H. Storey and J. MacMillan, Australia's Constitution: Time for Change, ch. 15. 33. In obiter the Chief Justice did say that it was up to the parliament to decide how to go about such legislation. See Bolandw. Hughes (1988) 83 ALR 673 at 674. 34. Building Construction Employees and Builders Labourers Federation of New South Wales v. Minister for Industrial Relations and anor (1986) 7 NSWLR 372 at 405. 35. H. Gibbs, cited in B. Gaze and M.Jones, Law, Liberty and Australian Democracy, p. 60. 36. Australian Constitutional Commission, Report on Individual and Democratic Rights, p. 36. 37. Nationwide News v. Willis (1992) ALJR 658; Australian Capital Television v. Commonwealth; NSW\. Commonwealth, Ibid. 695. 38. See the cases in Davidson and Spegele (eds), Rights, Justice and Democracy, pp. 103-17. 39. See Evans, Storey et al., Australia's Constitution, p. 324; Dietrich v. R (1992) 109 ALR 385. 40. Theophanous\. Herald & Weekly Times Ltd (1994) 68 ALJR 713. 41. In this connection it is interesting to see the response to a Privacy Charter in December 1994. See Graham Greenleaf, 'The Australian Privacy Charter - a new benchmark', 69 ALJ 2, 1995, 90 ff. 42. Age, 15 May 1995; (1995) 69 ALJR 423. The hostility of the ALP started with the Free speech cases. See Australian Law News, November 1992, pp. 7-14 which discusses Cabinet condemnation ofJudge Toohey's suggestion that an 'implied bill of rights' might have to be found by the judges. 43. See G. Venturini (ed.), Five Voices for Lionel, p. 134. 44. Typical of political scientists' criticism are the articles on the accountability of the judges in Australian Quarterly, Summer 1986, Winter 1987; but it is notable that equivalent criticism was expressed by Murphy in 1980, see Evans (ed), Law, Politics and the Labor Movement, pp. 2 ff. For a more recent analysis see B. Galligan and P. Russell, 'The politicisation of the judiciary in Australia and Canada', pp. 85-100. The views of
298
45. 46.
47. 48. 49. 50. 51. 52. 53. 54. 55. 56. 57. 58. 59.
60. 61. 62. 63. 64. 65. 66. 67. 68. 69. 70. 71. 72. 73. 74. 75. 76.
NOTES (PAGES 131-41) the present author are in Davidson and Spegele (eds), Rights, Justice and Democracy, which was written in 1989. See M. Kirby, 'Human rights: emerging international minimum standards', Commonwealth Law Bulletin, vol. 19, no. 3, July 1992, pp. 1252-74 (paper presented at annual conference of Australian Society of Labor Lawyers, Melbourne, 23 May 1992). See also the Mudginberri (1986) 161 CLR 98 and Dollar Sweets (1986) VR 383 cases. Ansett Transport Industries etc. v. Australian Federation of Air Pilots (1991) I VR 637. There are now suggestions that s. 51 (29) might be used to bring Australian industrial relations into line with international convention. See the Hon J. T. Ludeke, 'The external affairs power: another province for law and order', pp. 250-62. See Scutt (ed.), Lionel Murphy, pp. 51-2; the demand for an ombudsman went back to at least 1964, see D. Caiden, 'The ombudsman and the rights of the citizen', pp. 69-77. Salemi v. MacKellar (No 2), (1977) 137 CLR 396. See Legal Aid Commission/Victorian Council for Civil Liberties, Talking Rights: A Bill of Rights for Australians} For the need for bipartisan support see J. MacMillan, 'Constitutional reform in Australia' in One People, One Destiny, pp. 71-5. Ibid., p. 71; Australian Constitutional Commission, Final Report Summary, 1.56. Australian Constitutional Commission, First Report, p. 48. Ibid., pp. 256-66. Education for Active Citizenship, pp. 3, 6-7 and passim. Commentators rightly pointed out the fatuousness of choosing Athens as a model. For example, see Ted Wolfers in Australian Financial Review, 30 January 1989. Education for Active Citizenship, p. 7. Australia, Parliament Senate Standing Committee on Employment, Education and Training, Active Citizenship Revisited, p. 7. For example, see the series of debates promoted by the Ideas for Australia Committee in 1993, 'What is a citizen?' These debates were held in all the capital cities of Australia. For example, the use of the How to be Australian document of February 1994 in DIEA, Submission to the Joint Standing Committee on Migration, Inquiry into Enhancing the Meaning of Australian Citizenship, p. 28. See Junior Syllabus for Citizenship Education, p. 5; the work of the 'Ideas for Australia' program is incorporated in Teaching Young Australians to be Citizens (Monash University, 1995). More recently, the Prime Minister's Expert Committee on Civics reported in Whereas the People and asked for funds to set up national civics courses {Australian, 25 November 1994). In the 1995 budget $20 million was provided for such education. Age, 28 June 1983. SMH, 10 May 1985. SMH, 7 May 1985. Ibid., 6 May 1985. Ibid., 20 December 1985. Australian, 27 and 28 May 1989; compare 7 May 1987; G. Blainey, All for Australia. For example, Australian, 30 May 1984; Courier Mail, 3 and 9 September 1982. For example, see Age, Editorial, 21 December 1985. Ibid. Canberra Times, 27 August 1988. See In re Wood (1988) 167 CLR 145; Sykes v. Chary (1992) 66 ALJR 577; DIEA, Submission, pp. 55-6. DIEA, Submission, pp. 55-9; SMH, 5 April 1994. Australian, 4 and 5 June 1988. Castles et al., Mistaken Identity, pp. 131-3. Speech by the then Prime Minister, Paul Keating, on 13 November 1992 at National Immigration Outlook Conference, Sydney. B. Howe, Renewing the Commonwealth: The Fourth Sambell Memorial Oration, pp. 9—11. Whereas the People.
NOTES (PAGES 142-58) 77.
299
S. Macintyre, 'What's in a nation?', pp. 28-9; in his historical writing Macintyre maintains rather the thesis that the Constitution was not a 'democratic' document. See the debate with the conservative, J. Hirst, in S. Macintyre, 'Corowa and the voice of the people' (Federation Commemorative Lecture), Canberra Historical Journal, no. 33, March 1994, pp. 2-8 especially p. 7; and in the Victorian HistoricalJournal, October 1994.
Part II Discourses of Exclusion 1 2 3 4 5 6 7 8 9 10
Calvin's Case (1608), 7 Co Rep: M. Detmold, The Australian Commonwealth. A Fundamental Analysis of its Constitution, pp. 62-6. A. Davidson, The Invisible State: The Formation of the Australian State 1788-1901, see especially p. 148. J. Warden, D. Headon, B. Gammage (eds), Crown and Country: The Traditions of Australian Republicanism, ch. 1. A-M. Jordens, Promoting Australian Citizenship 1949-1971, p. 1. E. G. Whitlam, The Whitlam Government 1972-1975, p. 497. See, for example, Paul Keating's speech reported in the Age, 27 April 1995. Ibid. W. Kymlicka, Multicultural Citizenship. N. Bobbio, L'Etd dei diritti, Rfuturo della democrazia. See M. Walzer, 'The distribution of membership' in P. Brown and H. Shue (eds), Boundaries, National Autonomy and its Limits, pp. Iff; Walzer has shifted his ground considerably recently - see C. Mouffe (ed.), Dimensions of Radical Democracy, Pluralism, Citizenship, Democracy, pp. 89-100. On this, see A. Davidson, 'The citizen who does not belong'.
Chapter 5 Discourses of Exclusion, Silencing the Migrant Voice 1. A-M. Jordens, Redefining Australian Citizen' 1945-75, p. 56. 2. Ibid. 3. For example, the Human Rights Commissioner, C. Sidoti, reported on the '7.30 Report', ABC TV, 7 September 1995, and the Age, 8 September 1995. See also K. Walker, 'Treaties and the internationalisation of Australian law'. J. Collins, 'John Chinaman and John Newman challenging Asian stereotyping', p. 40 and passim. 4. A. v. Dicey, The Law of the Constitution, p. 188; I do not accept the view ofJ. Jowell, 'The rule of law today' in J. Jowell and D. Oliver (eds), The Changing Constitution, pp. 3-22 that because discretionary powers form part of government today Dicey's view is outmoded. The problem is precisely with the nature of government today, understood ethically. 5. E. Papadakis and C. Bean, 'Independents and minor parties: the electoral system' and 'Minor parties and independents: electoral bases and future prospects', passim. 6. CPD (S) 29 September 1993, p. 1489; Internet Hansard Parliament.
[email protected], 1995. 7. CPD(S), 1995, pp. 1369-1457, 1461 ff., (R), pp. 2903-2940. 8. P. Keating, 'New visions for Australia', pp. 470-1. 9. C. Stahl et al., Global Population Movements and their Implications for Australia, p. 107. 10. Y. 1L Ng and H. R. Clarke, 'The economic case for an open door policy', pp. 47-9; Ng and Clarke, 'Immigration and economic welfare: resource and environmental aspects', pp. 259-73; Ng, 'On the welfare economics of population control', pp. 247-66. See also K. Rivett, 'Purpose and choice in Australian immigration policy', pp. 1-15. 11. DFAT, A Review of Australian Efforts to Promote and Protect Human Rights, p. 65. 12. Ibid. 13. Compare Council of Europe, People on the Move: New Migration Flows in Europe; Political and Demographic Aspects of Migration Flows to Europe, S. Castles and S. Miller, The Age of Migration: International Population Movements in the Modern World', Stahl et al., Global Population Movements, especially ch. 3.
300
NOTES (PAGES 158-71)
14. Council of Europe, Political and Demographic Aspects, p. 14. 15. Ibid.;J.Jupp (ed.), The Australian People: An Encyclopedia oftheNation, itsPeopleand their Origins, p. 903; C. Inglis, 'Australia's refugee policy in an international context', pp. 15-27. 16. See W. Maley, 'Multiculturalism, refugees and duties beyond borders' in C. Kukathas (ed.), Multicultural Citizens: the Philosophy and Politics of Identity, pp. 186-90. 17. Robtelmesv. Brenan (1906) 4 CLR 395. 18. R. Lumb, The Constitution and the Commonwealth of Australia, Annotated, p. 155. 19. Polites v. Commonwealth (1945) 70 CLR 60 per Latham CJ at 69. This right was not applied during the Vietnam War and caused considerable community bitterness: SMH, 20 January 1965. 20. Cited in Maley, 'Multiculturalism, refugees and duties beyond borders' in Kukathas (ed.), Multicultural Citizens, p. 178. 21. Jordens, Redefining 'Australian Citizen', p. 4; A. F. Glover, Legal Status of Aliens in Australia, passim. 22. A-M. Jordens, Promoting Australian Citizenship 1949-71, p. 25. 23. Glover, Legal Status of Aliens, p. 6. 24. See Age, 23 September 1969. Billy Snedden is reported as stating: 'It is the policy of the Government not to grant citizenship to Communists or extremists of the Right'. See also Age, 4 July 1969. See also the Villegas case reported in the Canberra Times, 14 November 1970. Villegas was only a 'sympathiser' of Communism. 25. Age, 1 March 1973. 26. SMH, 31 March 1973. This was claimed by Gavin Souter (Ibid.), who cited Latham. 27. See the discussion of the Theo Sidiropoulos case in the Australian, 26 March 1976. 28. Salemi v. MacKellar, no. 2 (1977) 137 CLR 396; (1977) 14 ALR 1. See also Drakev. Minister for Immigration and Ethnic Affairs (1 and 2) (1979) 1 ALD 60; 2 ALD 634: Salemi no longer applies after amendments to the Migration Act so that a person in his situation can insist on a hearing. See Kioav. West (1985) 159 CLR 550. 29. Ibid.; Minister for Immigration and Ethnic Affairs v. Pochi (1981) ALJR 706. 30. Drake No. 2 per Brennan J. at 641, 643. 31. See I. Moss, State of the Nation: A Report on People of non-English Speaking Backgrounds, pp. 176-7. 32. DIEA, Submission to the Joint Standing Committee on Migration Inquiry into Enhancing the Meaning of Australian Citizenship, pp. 61-2; DPP\. Smith (a991) VR 63 whose definition of 'public interest' was adopted. For the attitudes of the 1980s among conservatives see Committee to Advise on Australia's Immigration Policies, Immigration: A Commitment to Australia (the FitzGerald Report) and Mr Howard's statements in the Age, 6 August 1988. 33. See DFAT, A Review of Australia's Efforts to Promote and Protect Human Rights, p. 66. 34. R. Plender (ed.), Basic Documents on International Migration Law. 35. Minister for Immigration and Ethnic Affairs v. Tangjia Xin (1994) 69 ALJR 8. 36. See, for example, Leonie Kramer in Australian, 10 December 1993, Department of Prime Minister and Cabinet, OMA, National Agenda for a Multicultural Australia: Sharing our Future, p. 50. 37. D. Barnett, 'How the bloated ethnic industry is dividing Australia', pp. 58-62. 38. II Globo, 10 February 1986. 39. Nhan Quyen, 29 April 1985; Integration III, 7 April 1995, p. 40. 40. A. Townley, 'Immigration in a changing world', p. 6. 41. Digest of the Australian Citizenship Convention, 1957, pp. 12, 17, 23; 1961, pp. 8-11. 42. Digest of the Australian Citizenship Convention, Canberra, 1962, p. 8. 43. See P. Wilson, Immigrants and Politics, pp. 138-9. 44. Digest, 1962, pp. 19-22. 45. Digest, 1965, pp. 18-25. 46. Digest, 1961, pp. 23-4; 1962, p. 27. 47. M. Tenezakis, The Content of Three Sydney-Based Ethnic Newspapers; A. I. W. Ata and C. Ryan (eds), The Ethnic Press In Australia. 48. Neos Kosmos, 28 August 1969; Nhan Quyen, 29 April 1985 and 24 April 1985.
NOTES 49. 50. 51. 52. 53. 54. 55. 56. 57. 58. 59. 60. 61. 62.
63. 64. 65. 66. 67.
68. 69. 70. 71. 72.
73. 74. 75. 76. 77. 78. 79.
(PAGES 171-81)
301
Tivi Tuan San, 13 and 27 August 1988, 3 December 1988. // Globo, 1 January 1986. Neos Kosmos, 20 November 1983; LaFiamma, 1 April 1982. II Globo, 3 November 1986. For a more general discussion, see my 'The citizen who does not belong', p. 11. Nuovo Paese, May 1995, pp. 2-3. M. Mantello, 'The Italian transformation of Werribee', pp. 50-1; Koon Wing Lauv. Calwell, (1954) 80 CLR 533. For example, see the discussion of the debate on immigration in which Blainey, Helen Hughes, and others have focused on the danger of 'linguistic ghettos' in // Globo, 13 March 1995. DIEA Submission, p. 30. Nhan Quyen, 13 October 1994. Compare National Agenda, pp. 19 ff. Integration, III, 7 April 1995, p. 10. Ibid., April-July 1995, p. 22; Nhan Quyen, 13 October 1994, p. 24; April 1985, p. 8; June 1995, Editorial. Integration, III, 7 April 1995, p. 20. A short curriculum vitae of Venturini is to be found in G. Venturini (ed.), Five Voices for Lionel, pp. 84-5; G. Venturini, Malpractice: The Administration of the Murphy Trade Practices Act: Anti-Trust as an Australian Poshlost, pp. 11-13. Also personal correspondence Bastille Day, 1993. It is worth noting that Venturini found this quotation in the first reader on Australian politics, whose editor was Professor Henry Mayer, one of the Dunera boys discussed above as victims of Australian hostility to all that was not familiarly British. Venturini, Malpractice, pp. 24-6. The women's voice was, of course, heard, where the much earlier migrant voice was smothered. We discuss women and citizenship briefly in the text below. Venturini (ed.), Five Voices for Lionel, p. 92. Ibid., p. 96. For example, see Evidence before the Senate Inquiry on Social Benchmarks for Citizenship. See C. Humana (ed.), World Human Rights Guide, pp. vii-xix. The complacency can only be sustained by comparing Australia with its Asian neighbours. It is notable that it scores only 33 out of 40, much below equivalent European countries. See H. de Jonge, 'Democrazia e sviluppo economico nella regione Asia-Pacinco', p. 564. Venturini (ed.), Five Voices for Lionel, pp. 123-4. A. Theophanous, Understanding Social Justice: An Australian Perspective, ch. 4. Cited by C. Rowley, The Remote Aborigines, p. 341; for the conditions of migrants, see A-M. Jordens, Redefining Australians: Immigration, Citizenship and National Identity, chs 3-7. See generally S. Macintyre, Winners and Losers: the Pursuit of Social Justice in Australian History, passim. On women and citizenship see M. Lake, 'Personality, individuality, nationality: feminist conceptions of citizenship 1902-1940', pp. 25-38; 'A revolution in the family: the challenge and contradictions of maternal citizenship in Australia', in S. Koven and S. Michal (eds), Mothers of a New World: Materialist Politics and Origins of Welfare States, pp. 378-95. See National Agenda, p. 20. Access and Equity: Educational Guide for the Australian Public Service, passim. LaFiamma, 11,17 and 24 May 1982; // Globo, 3 March 1986, 7July 1986, 4 August 1986. See Neos Kosmos, 17 July 1969, 4 September 1969, 6 December 1984; Nhan Quyen, June 1995; see also J. Cou'ghlan, 'A comparative analysis of ethnicity, English proficiency and religion of Australia's first Indochinese-born communities 1976-86'. For example, when Franca Arena MLC (NSW) suggested this it aroused great hostility: Nuovo Paese, 1 May 1995, 'A pernicious form of censorship'. See Moss, State of the Nation, ch. 4; Immigrant Workers Health Project, Mercy Hospital. See Annual Social Justice Statements, 1992-1995; discussion paper of the Senate Legal and Constitutional Reform Committee, 'A System of National Citizenship
302
80. 81. 82. 83. 84. 85. 86. 87.
88. 89. 90. 91.
NOTES (PAGES 182-93) Indicators', May 1995, pp. 74 ff. especially pp. 76, 77. The 'Social Benchmarks' project at Swinburne University of Technology led by Mike Salvaris has now received Australian Research Committee funding. N. Bobbio, L Eta dei diritti, passim especially pp. 45-89; A. Davidson, 'Dilemma of liberal socialism: the case of Norberto Bobbio', Australian Journal of Politics and History, vol. XLI, no. 1, 1995, pp. 47-54. E. C. Barcesat, 'Socialisme et droits de l'homme: une edification conjointe', pp. 32-6. Discussion paper of the Senate Legal and Constitutional References Committee, A System of National Citizenship Indicators, especially pp. 15-18, ch. 5. N. Bobbio, 'Dialogo sulle istituzioni', p. 67. L. Henkin et al., Basic Documents Supplement to International Law Cases and Materials, pp. 337-43. T. Borgeest, Public Education and the Constitution: Constitutional Guarantees for Public Education, Discussion Paper no. 1, p. 8 and passim. M. Salvaris, Public Education, Citizenship and Constitutional Reform: Constitutional Guarantees for Pubic Education, Discussion Paper no. 2, pp. 15-17. L. Jayasuriya, 'State, nation and diversity in Australia', pp. 21-7; Jayasuriya, 'Citizenship and welfare, rediscovering Marshall', paper at the conference 'Beyond economic rationalism: alternative futures for social policy', Perth, November 1992; E. Vasta, 'Multiculturalism and ethnic identity: the relation between racism and resistance', pp. 207-25; S. Castles, 'The racism of globalisation', in E. Vasta and S. Castles (eds), The Teeth are Smiling: The Persistence of Racism in Multicultural Australia, Allen & Unwin, Sydney (1996) C. Kukathas (ed.), Multicultural Citizens: the Philosophy and Politics of Identity; C. L. Ten, 'Multiculturalism and the value of diversity' in ibid., pp. 17-30. See de Jonge, 'Democrazia e sviluppo economico'; Department of Foreign Affairs and Trade, A Review of Australian Efforts to Promote and Protect Human Rights, pp. 49-52. DFAT, Human Rights Manual, p. 96. J. Pixley, Citizenship and Employment: Investigating Post-Industrial Options; see the criticisms of R. Watts, Political Expressions, no. 1, 1995. For example, R. Birrell, A Nation of Our Own. Chapter 6 Aborigines and Citizenship: Discourses of Exclusion
1. Age, 26 July 1995. 2. A. Davidson, The Invisible State: The Formation of the Australian State 1788-1901, chs 1 to 3. 3. See A. Finkielkraut, La Sagesse de Vamour, pp. 149-52 who discusses the Nazi hate of the 'invisibility' of the Jews. 4. R\. Congo Murrell (1836) 1 Legge 72; McHughw. Robertson, Bennv. Syme (1885) 40 VLR 412. 5. C. D. Rowley, The Remote Aborigines, pp. 392 ff;J. Bennett, Aborigines and Political Power. 6. A Markus (ed.), Blood from a Stone: William Cooper and the Australian Aborigines League, p. 3. 7. P. Biskup, Not Slaves Not Citizens, p. 85; Markus (ed.), Blood from a Stone, p. 4. 8. Markus (ed.), Blood from a Stone, pp. 25-7, 39. 9. J. Horner, Vote Ferguson for Aboriginal Freedom: A Biography, p. 48. 10. Ibid., p. 59. 11. M. T. Clark, Pastor Doug: The Story of an Aboriginal Leader, p. 102; Markus (ed.), Blood from a Stone, pp. 50, 67-9. 12. Markus, Blood from a Stone, p. 98. 13. A. P. Elkin, Citizenship for the Aborigines: A National Aboriginal Policy, p. 28. 14. Ibid., p. 51. 15. Ibid., p. 23.
NOTES (PAGES 193-206) 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45. 46.
47. 48.
303
See, for example, H. Braddon, Essays and Addresses: Historical, Economic, Social, pp. 161-79. In his lecture on citizenship, Braddon had typified the Aborigines as a vanishing race who posed no problem for a 'warrior' theory of the citizen. See Horner, Vote Ferguson, p. 72 for the emergence of the Ferguson/Patten rivalry in New South Wales in the late 1930s, which was a harbinger of later development. L. Lippman, Generations of Resistance: The Aboriginal Struggle forJustice, p. 37. See Markus (ed.), Blood from a Stone, p. 34 for one episode. See also generally A. Markus, Governing Savages, (Allen 8c Unwin, Sydney, 1990). Cited in Clark, Pastor Doug, pp. 193-4. Rowley, The Remote Aborigines, passim, p. 188. Clark, Pastor Doug, p. 244; H. Middleton, But Now We Want the Land Back: A History of the Aboriginal People, p. 108; Rowley, Outcasts in White Australia, p. 394 ff. See S. Stone (ed.), Aborigines in White Australia: A Documentary History of the Attitudes Affecting Official Policy and the Australian Aborigine, 1697-1973, pp. 196 ff. See, for example, the Australian Nationality and Citizenship Act (1948). E. Simon, Through My Eyes, pp. 183-6. C. Tatz and K McConnochie (eds), Black Viewpoints: The Aboriginal Experience, p. 82. See the telling story of Pompey Mays in W. McNally, Goodbye Dreamtime, pp. 49-50 about the high hopes that citizenship would bring a better life. H. Smith and E. Biddle, Look Forward, Not Back: Aborigines in Metropolitan Brisbane 1965-1966, pp. 110-12. J. Sullivan, Banggaiyerri: The Story of Jack Sullivan as told to Bruce Shaw, pp. 206-7. B. Gaze and M.Jones, Law, Liberty and Australian Democracy, p. 87; C. Tatz, Race Politics in Australia: Aborigines, Politics and Law, pp. 19-32. Tatz, Race Politics in Australia, p. 32ff.;G. Eliot, 'Kimberley justice appeal'. Bennett, Aborigines and Political Power, pp. 115-16, 122 for a list of successful major party candidates. Stone (ed.), Aborigines in White Australia, p. 206. Aborigines and Ourselves, papers and discussions at the conference held by the Aboriginal/Australian Fellowship, 13 to 15 October 1961, p. 27. G. Whitlam, The Whitlam Government 1972-1975, p. 457. Ibid., p. 457. Ibid., p. 460. See generally G. Nettheim, Aboriginal Legal Issues: Commentary and Materials, pp. 186 ff, 154ff;Minister for Immigration and Ethnic Affairs v. Teoh (1995) 69 ALJR 423. Nettheim, Aboriginal Legal Issues, p. 160 ff. Ibid., p. 162. G. Simpson, 'Mabo, international law, terra nullius and the stories of settlement: an unresolved jurisprudence'. Eddie Mabo & Ors v. State of Queensland [No. 2], (1992) 175 CLR 1; Eddie Mabo & Ors v. State of Queensland [No. 1], (1988) 166 CLR 186. R. Pitty and I. Hughes, 'Australian colonialism after Mabo'; R. Castan, 'The Mabo case'. See P. McHugh, The Maori Magna Carta: New Zealand Law and the Treaty of Waitangi, pp.110-11. This has already started in H. Reynolds, Fate of a Free People: A Radical Re-examination of the Tasmanian Wars. C. Cuneen, 'Aboriginal imprisonment during and since the Royal Commission into Aboriginal deaths in custody', pp. 13-14; Amnesty International Report, 1994, pp. 62-3; C. Humana (ed.), World Human Rights Guide rates Australia low among the OECD and advanced capitalist polities, though good overall. See, for example, E. Renan, Qu'est-ce qu'une nation, pp. 41, 42, 55. Section 127 of the Commonwealth Constitution states: 'In reckoning the people of the Commonwealth, or of a State or other part of the Commonwealth, Aboriginal natives shall not be counted'. Section 51(xxiv) gave the Commonwealth power to make laws for: 'the people of any race, other than the Aboriginal race in any State,
304
49. 50. 51. 52. 53. 54. 55. 56. 57. 58. 59.
NOTES (PAGES 2 0 7 - 2 2 ) for whom it is deemed necessary to make special laws'. The attitude at Federation was summed up by King O'Malley, Labor, when their admission to the vote was considered and rejected. 'An Aborigine is not as intelligent as a Maori. There is no scientific evidence that he is a human being at all', CPD, 1902, p. 1930 cited in Bennett, Aborigines and Political Power, p. 113. See S. Stone, Aborigines in White Australia, pp. 184-5. Markus, Governing Savages, sees the root value of white administration of the Aborigines as derived from this expert elitism, which excludes the participatory democratic voice of the objects of policy. McNally, Goodbye Dreamtime, p. 60. A. Markus and B. Gammage (eds), All That Dirt: Aborigines 1938, especially p. 84 and ch. 7 passim. Elkin, Citizenship for the Aborigines, pp. 90-1. Annual Reports for Native Affairs, 1949, 1950, 1951 (Government Printer, Perth). Parliamentary Debates WA (C), 1944, p. 1278. Ibid., pp. 1406, 1408. The departmental story is on p. 1557. Ibid., p. 1551. Parliamentary Debates (Queensland), vol. 240, 1964-65, p. 2553. Ibid., p. 2557.
60. Ibid., pp. 2558, 2560, 2577. 61. Ibid., p. 2579.
62. Parliamentary Debates New South Wales, vol. 78, 1968-69, p. 3722. 63. Ibid., pp. 3725, 3732. 64. Ibid., p. 3743. 65. For example, see the Neal and Wise cases reported in Gaze and Jones, Law, Liberty and Australian Democracy, pp. 443, 449. 66. Compare Amnesty International Report 1994 with Humana (ed.), World Human Rights Guide. 67. See Parliament of the Commonwealth, DFAT, A Review of Australia's Efforts to Promote and Protect Human Rights, pp. 59 ff. 68. Whitlam, The Whitlam Government 1972-1975, p. 475. 69. W. Hudson and D. Carter ( eds), The Republicanism Debate, p. 232. 70. Nettheim, Aboriginal Legal Issues, p. 319. 71. H. C. Coombs, Aboriginal Autonomy: Issues and Strategies, pp. 213-32 ff.
Part III The Active Citizen and Beyond 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14.
J. Hirst, The Strange Birth of Colonial Democracy: New South Wales 1848-1884. J. Stewart (ed.), A Documentary Survey of the French Revolution, pp. 114, 234-6, 456-9. Aristotle, The Politics, pp. 60-1, 169-71, 456-67. Strasbourg Consensus (Council of Europe, Strasbourg, 1983). J-J. Rousseau, Oeuvres completes, vol. II, pp. 276-308, 522-3. See Plato, The Protagoras and Meno, p. 54. See note 2; N. Bobbio, Ilfuturo della democrazia, ch. 3. Bobbio, Ilfuturo della democrazia, ch. 2. See S. Rodota, 'Sovereignty in the age of technopolitics'. Ibid., pp. 44-5; see also J. Abramson et al., The Electronic Commonwealth: The Impact of Media Technologies on Democratic Politics, ch. 5. In the agora network there are multiple optional translation modes. See R. Stiavetti and B. Parrella, 'A square in Rome', pp. 91-4 especially p. 93. Australian Constitutional Commission, Report on Individual and Democratic Rights, p. 79. Compare note 13. Australian Constitutional Commission, First Report of the Constitutional Commission, vol. I, p. 244. Australian Constitutional Commission, Report on Individual and Democratic Rights, p. 80.
NOTES (PAGES 2 2 2 - 3 2 )
305
15. Australia. Parliamentary Joint Standing Committee on Electoral Matters, One Vote One Value: Inquiry into the Constitutional Alteration (Democratic Elections) Bill, pp. 21-2.
Chapter 7 The Active Citizen and Direct Democracy in Australia 1. The final version is in R. Lumb, The Constitution and the Commonwealth of Australia Annotated, at 1. It is embodied in the Commonwealth of Australia Constitution Act, (63 and 64 Victoria, 12); see R. Parker, 'Australian Federation: the influence of economic interests and political pressures', pp. 152 at 157. 2. Official Record of the Debates of the Australasian Federal Convention, 3rd Session, Melbourne, at pp. 12, 61, 67. 3. Ibid, at p. 93; see also A. Clark at p. 97, Captain Russell at p. 123 and A. Macrossan at p. 199. 4. Official Report of the National Australasian Convention Debates, at pp. 613, 614. 5. Ibid, at p. 616. There is no express evidence of the British position. See Commonwealth of Australia Constitution Bill Debates in the Imperial Parliament with Appendices. It is, however, implicit in the British position generally. See C. S. Emden, The People and the Constitution, p. 319. 6. Official Report of the National Australasian Convention Debates, at p. 620. 7. Ibid, at p. 622; P. A. Paterson, 'Federal electorates and proportionate distribution', especially at p. 131 which describes redistributions in 1906, 1912, 1922, 1934 that confirm Sir George Grey's fears that nothing would be done to alter gerrymanders. In 1974 a referendum to achieve an equality of people (not electors) in each electorate won support of only 40 per cent of the voters. 8. Official Report of the National Australasian Convention Debates, at pp. 629 and 636-7. 9. Official Record of the National Australasian Convention Debates, Adelaide, 1897 at p. 1191; see also Tocsin, 10 March 1898 in H. Anderson (ed.), Tocsin: Radical Arguments Against Federation 1897-1900, pp. 24-5. 10. Official Report of the National Australasian Convention Debates, Adelaide at p. 724; see also Official Record of the Debates of the Australasian Federal Convention, Third Session, Melbourne, 1898, vol. II, at pp. 1827-40 especially pp. 1834-5. 11. Official Record of the National Australasian Convention Debates, vol. I, pp. 614—44. 12. Paterson, 'Federal electorates and proportionate distribution'. 13. E. G. Whitlam, The Whitlam Government 1972-1975, pp. 662-3. 14. E. G. Whitlam, in Australian Institute of Political Science, Liberty in Australia, pp. 171-4. 15. Australian Constitutional Commission, First Report of the Constitutional Commission, vol. I, (henceforth: First Report), p. 231. 16. Ibid., p. 208. 17. Australian Constitutional Commission, Report on Individual and Democratic Rights, p. 79, ch. 11 passim; see also First Report, pp. 6-7, 228 ff. 18. First Report, p. 210. 19. Burke v. State of Western Australia (1982) WAR 248. 20. A-G (Commonwealth) ex relat. McKinlayv. Commonwealth, (1975) 135, CLR 1, 17, 19. 21. Ibid., at pp. 36-7. 22. Ibid., at pp. 44-5. 23. Ibid, at p. 57. 24. Ibid, at p. 64; p. 73, see also his quotation from W. H. Moore, The Constitution of the Commonwealth of Australia, p. 327. 25. A-G (Commonwealth) ex relat. McKinlayv. Commonwealth, at p. 23. 26. Ibid, at p. 24. 27. Ibid, at p. 9, at 2. 28. Ibid. 29. Bakery. Carr (1962) 396 US 186 [7L ed 2nd, 663] especially at 735 ff.; Wesberry v. Sanders (1964) 376 US 1 [11 L ed 2nd, 481 at 487; 492].
306 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41. 42. 43. 44.
45. 46.
47. 48. 49. 50.
51. 52. 53. 54. 55. 56. 57. 58. 59. 60. 61.
NOTES (PAGES 232-44) Colegrove\. Green (1946) 328 US 540 [90 L ed, 432]; see also Wesberry v. Sanders, (1964) 376 US 1 [11 L ed 2nd, 481] at 509. Kirkpatrick v. Kreisler (1969) 394 US 526 [L ed 2nd]. Whiter. Weiser (1973) 412 US 783. See Australian Treaty Series 1980, pp. 1 ff. See also 1984, p. 19. First Report, vol. I, pp. 229-30; A-G (Commonwealth) ex relat. McKinlay v. The Commonwealth, (1975) 135 CLR 1. See also Burke v. State of Western Australia (1982) WAR 248. Australia. Parliamentary Joint Standing Committee on Electoral Matters, One Vote One Value, pp. 16 ff. The legislation is discussed in Australia, Parliamentary Joint Standing Committee on Electoral Matters, One Vote One Value, pp. 39-42 and First Report, vol. I, pp. 198-202, 254-5. See also B. Gaze and M.Jones, Law, Liberty and Australian Democracy, ch. 3. See A. Davidson, 'Understanding citizenship in Australia' in K. Dempsey (ed.), Beyond the Headlines Politic: Australia and the World, pp. 1-17. First Report, vol. II, pp. 571-85. See G. Evans, H. Storey and J. MacMillan, Australia's Constitution: Time for Change, pp. 144 ff. See B. Galligan, 'Federalism's ideological dimension and the Australian Labor Party', pp. 128-40. F. Bland (ed.), Changing the Constitution, p. 41. Ibid. Information from Mike Salvaris. See the Australian Constitutional Commission, Constitutional Commission Final Report Summary, p. 75; The Electors Initiative and Referendum Bill 1994 (No. 2) Legislative Assembly of the ACT; Citizens' Initiated Referendums, Discussion Paper No. 3, August 1991, pp. 22-31; Citizens' Initiated Legislation Report, 1994 Annual Report of the Western Australian Electoral Commission 1994. Australia, Parliamentary Joint Standing Committee on Electoral Matters, One Vote One Value, p. 45. See Walker, Constitutional Changes in the 1990s: Moves for Direct Democracy. See also Walker's 'Participation by initiative and referendum: could it work in Australia?' in M. Munro-Clark (ed.), Citizen Participation in Government, pp. 37-55. C. Hughes, Commonwealth Constitution: Methods for Initiating Amendments. Australian Constitutional Commission, Report on Individual and Democratic Rights, pp. 95-9. Citizens' Initiated Referendums, pp. 22-3. Australian Constitutional Commission, Report on Individual and Democratic Rights, p. 97. See, for example, the debate in the Official Report of the National Australasian Convention Debates, Sydney, 2 March to 9 April 1891, pp. 613, 614-16, 620-2, 636-7; see also Paterson, 'Federal electorates and proportionate distribution', and comments in note 7 above. Canberra Times, 4 May 1994. Ibid., 18 July 1994. Age, 28 and 29 July 1994. G. Evans, 'Labor and the Constitution', p. 16. D. Home, Power from the People: A New Australian Constitution. Australian Government Weekly Digest, vol. I, no. 33, 10 to 16 November 1975, p. 995 (emphasis added); J. Kerr, Matters for Judgment: An Autobiography. See G. Maddox and J. Archer, 'The concept of "politics" in Australia', p. 10. W. McMinn, A Constitutional History of Australia, pp. 84-5, 163; A. Davidson, The Invisible State: The Formation of the Australian State 1788-1901, passim. B. Galligan, 'The founders' design and intentions regarding responsible government' in D. Jaensch and P. Weller (eds), Responsible Government in Australia, p. 9. K. Rowley, 'The fall of Labor and the return of the 1955 Chiko roll', p. 4. First Report, pp. 301, 307.
NOTES (PAGES 244-57)
307
62. Australian Constitutional Convention (1985), Official Records of the Debates of the Australian Constitutional Convention, Proceedings, vol. I, pp. 415—17; First Report, vol. I, pp. 440-1. 63. First Report, vol. I, pp. 444 and 520. Compare the Report of the Advisory Committee on Executive Government, pp. 39-42 which wished the proposal to extend to the 'reserve powers' as well. 64. See I. McAllister, Political Behaviour: Citizens, Parties and Elites in Australia (Longman/Cheshire, Melbourne, 1992), p. 45; see also R. Dalton, Citizen Politics in Western Democracies (Chatham House, New Jersey, 1988) for patterns elsewhere and, for a brilliant critique of liberal-democratic politics, J. Warden, A Bunyip Democracy: The Parliament and Australian Political Identity, Parliamentary Library Monograph 2 (AGPS, Canberra, 1995) especially chs 5-9. 65. See Bland in Australian Institute of Political Science, Liberty in Australia, pp. 149, 152. 66. McAllister, Political Behaviour, p. 29; see also CPD, R, 1926, pp. 1152 ff. 67. McAllister, Political Behaviour, chs 3, 4; E. Papadakis and C. Bean, 'Independents and minor parties: the electoral system' and 'Minor parties and independents: electoral bases and future prospects', pp. 97-126. 68. V. Burgman, Power and Protest (Allen & Unwin, Sydney, 1993); and A. Milner, 'Dressed for success: the intelligentsia and its new social movements', APSA Conference Paper, University of Melbourne, 27 September 1995. 69. Sir Ninian Stephen, 'Our demotic Constitution', pp. 706-10. 70. P. Saunders (ed.), Wealth and Inequality (Cambridge University Press, Cambridge, 1994); United National Development Report 1994, p. 196; Global Times, 20 February 1995. 71. P. O'Malley, 'Global politics and national policies: editorial social justice in the client state', p. 10; S. Harris, 'The international economy and domestic politics' in I. Marsh (ed.), Governing in the 1990s: An Agenda for the Decade, pp. 30 ff.
Conclusion 1. F. Bland (ed.), Changing the Constitution, p. 16. 2. See M. Kirby, 'In defence of the constitutional monarchy', p. 32; and in W. Hudson and D. Carter (eds), The Republicanism Debate, ch. 3. 3. Official Record of the Debates of the Australasian Federal Convention, Melbourne 1898, pp. 1751-69. 4. Australian Constitutional Commission, First Report of the Constitutional Commission vol. I, pp. 256-66 (henceforth First Report). It is notable that the linking of citizenship with the right to vote as a technical problem was also made at the 1897 Convention, though there it was linked to the issue of the power of the States, which was clearly not democratic: Official Record of the National Australasian Convention Debates, Adelaide, 1897, vol. II, pp. 454 ff. 5. See Department of Immigration and Ethnic Affairs, Submission to the Joint Standing Committee on Migration Inquiry into Enhancing the Meaning of Australian Citizenship, p. xiii. 6. See M. Salvaris, Public Education, Citizenship and Constitutional Reform: Constitutional Guarantees for Public Education Discussion Paper No. 2. 7. N. Bobbio, L'Etd dei diritti, Part I, especially pp. 67 ff.; W. Kymlicka, Multicultural Citizenship. 8. J. Stewart, A Documentary Survey of the French Revolution, p. 456. 9. N. Bolkus, Minister for Immigration, 'The ties that bind', press release, 4 September 1995. 10. Speech to the Global Diversity Conference, Sydney, reported in the Age, 27 April 1995. 11. See R. Goodin in Ethics, July 1988, p. 658. 12. D. Miller, 'The ethical significance of nationality', pp. 647-57; D. Miller, Market, State and Community Theoretical Foundations of Market Socialism, especially ch. 10. 13. C. Kukathas (ed.), Multicultural Citizens: The Philosophy and Politics of Identity, p. 154.
308 14. Ibid., pp. 156, 27.
NOTES (PAGES 257-66)
15. Ibid., p. 10. 16. M. Walzer, 'The distribution of membership' in P. G. Brown and H. Shue (eds), Boundaries, National Autonomy and its Limits, pp. 13, 32. 17. See C. Mouffe (ed.), Dimensions of Radical Democracy, Pluralism, Citizenship, Community, pp.89-108. 18. H. Evans, 'A note on the meaning of republic'; Kirby, 'The defence of the constitutional monarchy', pp. 30-4; Australia, Representative Advisory Committee, An Australian Republic: Report of the Republican Advisory Committee, vol. I. 19. Kirby, 'In defence of the constitutional monarchy', p. 33. 20. K Woldring, 'Why the Australian people must remake their entire Constitution', (unpublished paper) APSA Conference, Australian National University, 30 September-2 October 1992. 21. Australia, Representative Advisory Committee, An Australian Republic, pp. 1, 17, 41. 22. For example, J. Camilleri and J. Falk, The End of Sovereignty: The Politics of a Shrinking and Fragmenting World, A. Horsman and A. Marshall, After the Nation—State Citizens: Tribalism and New World Disorder, J. Delbruck, 'Global migration-immigration - multiethnicity challenges to the concept of the nation state'; S. Harris, 'The international economy and domestic politics' in I. Marsh (ed.), Governing in the 1990s, ch. 2; R. Gregory, 'How much are Australia's economy and economic policy influenced by the world economy?' in F. Castles (ed.), Australia Compared: People, Policies and Politics, ch. 6. 23. I. Wallerstein, The Modern World System, The Capitalist World Economy Essays; F. Braudel, Civilisations Materielles, Economie et Capitalisme xv-xviii Siecles, especially vols 2 and 3. 24. See generally R. Reich, The Work of Nations: Preparing for the Twenty First Century; R. Heilbroner, Twenty First Century Capitalism; Secretariat d'Etat aupres du ministre charge du plan, Entrer dans le XXIeme siecle. Essai sur Vavenir de Videntite francaise, P. Kennedy, Preparingfor the Twenty-first Century; EPAC, Perspectives on Shaping our Future and Ambitions for our Future. 25. Reich, The Work of Nations, pp. 225-40. 26. See Council of Europe, Political and Demographic Aspects of Migration Flows, p. 106; A. Dowty, Closed Borders: The Contemporary Assault on Freedom of Movement, P. Brown and H. Shue (eds), Boundaries, National Autonomy and its Limits:, F. Whelan, 'Citizenship and the right to leave', pp. 636-53; R. Nett, 'The civil right we are not ready for: the right of free movement of people on the face of the earth', pp. 212-27; G. Conac and A. Amor, Islam et les Droits de I'Homme, p. 72. 27. T. Hammer, Democracy and the Nation State: Aliens, Denizens and Citizens in a World of International Migration. 28. Camilleri and Falk, The End of Sovereignty; J. Thompson, Justice and World Order: A Philosophical Inquiry. 29. I borrow this apt notion from H. Beare and M. Slaughter, Education for the Twenty-first Century, p. 8. 30. R. Schuman, Pour I'Europe. 31. 'Today there are no longer Frenchmen, Germans, Spaniards, or even Englishmen ... there are only Europeans. They all have the same tastes, the same passions, the same customs, because none has been given a national form through particular institutions. In the same circumstances all will do the same thing; all will claim that they are unbiased and all will be knaves; all will talk about the public good and think only of themselves; all will praise mediocrity and want to be Croesus; they will all have as their only ambition idleness and luxury (luxe); and as their only passion gold; sure of obtaining anything they want through it they will all sell themselves to the first comer who wishes to pay. What does it matter to them which master they obey; which laws of what state they follow. Provided they find money to steal and women to corrupt, they are at home everywhere', JJ. Rousseau, 'Considerations sur le gouvernment de Pologne' in Oeuvres completes, vol. Ill, p. 531. 32. For example, C. Cattaneo, Opere scelte, vol. 1, Introduction; vol. 2, pp. 287 ff. 33. B. Barber, Strong Democracy: Participatory Politics for a New Age.
NOTES (PAGES 266-75)
309
34. P. J. Proudhon, Principe federatif et oeuvres diverses sur les problemes politiques europeens, p. 383: 'qui dit liberte dit federation ou ne dit rien; qui dit republique dit federation ou ne dit rien'; Catteneo, Opere scelte, 4 vols, pp. 79 ff.: 'Liberta e republica, e republica e pluralita, ossia federazione'. 35. J. Monnet, Memoirs, p. 524. 36. The Citizens and the Single Market. 37. Council of Europe, People on the Move: New Migration Flows in Europe, pp. 54-62. 38. W. McNeil, Polyethnicity and National Unity in World History; G. Neilson, 'States and "nation groups": a global taxonomy' in E. Tiryakian and R. Rogowski (eds), New Nationalisms of the Developed West, ch. 2. 39. M. Wievorka, La democratie a Vepreuve: Nationalisme, populisme, ethnicite, pp. 97, 144. 40. R. Ulargiu, Razza operaia: Intervista a Yann Moulier Boutang, p. 1. 41. Cited in Council of Europe, Political and Demographic Aspects, pp. 106-8. 42. European Parliament Directorate General for Research, Citizens' Europe: Action Taken by the European Parliament to Create a European Community To Serve its Citizens, p. 3. 43. See P. Fontaine, A Citizen's Europe, pp. 9-10; see also van Gend and Loos, 26/62 ECJR 1963. 44. A. Durand, 'European citizenship', pp. 3-14. Durand relied on the US case of Edwards v. California, 314 US 160 (1941). 45. C. Closa, 'The concept of citizenship in the Treaty of the European Union', pp.1137-69. 46. European Parliament Directorate General for Research, Citizens' Europe: Action Taken by the European Parliament to create a European Community To Serve its Citizens, p. 15: 'the special rights which each Member State allows to be granted to the citizens of other Member States are certain civil and political rights and these should be granted in accordance with a principle similar to that underlying the Community Treaties, that is to say equal treatment with nationals in the economic field'. The rights in question are 'the right to vote and be elected and the right of access to public offices linked with the said right to be elected'. Only in 1991 had France got around to meeting the request that public service be opened in certain categories, like teachers, to foreigners. 47. Closa, 'The concept of citizenship', p. 1150; EuGrz, 1990, 443. 48. Ruling of 31 October 1990, AZ 2BVF 3/89. 49. European Parliament, Citizens' Europe: Action taken by the European Parliament, pp. 19-20. 50. Ibid., p. 24. 51. Fontaine, A Citizen's Europe, p. 45. 52. Encyclopedia of European Community Law, vol. B, European Community Treaties. 53. EC Background: European Community Information Note. 54. E. Wistrich, The United States of Europe, p. 94. 55. For example, R. Ladrech, 'Europeanisation of domestic politics and institutions: the case of France', pp. 169 ff. 56. A. Teasdale, 'Subsidiarity in post-Maastricht Europe', pp. 187-97. 57. See, for example, J. Labasse, Quelles regions pour I'Europe? 58. M-H. Eissen, 'L'interaction des jurisprudences constitutionnelles nationales et de la jurisprudence de la cour europeenne des droits de l'homme' in D. Rousseau and F. Sudre, Conseil tonstitutionnel et Cour Europeene des Droits de VHomme. Droits et libertes en Europe, pp. 137-215. 59. See Encyclopaedia of European Community Law. 60. The European, 24-30 June 1994; 22-28 July 1994; 29 July-4 August 1994. 61. TheEuropean, 15-21 July 1994; 13-19 May 1994; 23-29 September 1994. 62. L'Expansion, 2 to 15 June 1994; see also Liberation, 1 June 1994. 63. A. Terrenoire, Le Parlement europeen; The European Parliament after the 1994 Elections: Assessment of the Challenges, pp. 1-4. 64. The European Parliament after the 1994 Elections, p.7, annex by R. Plicht. 65. The European, 20-26 May 1994. 66. (Senat, Palais de Luxembourg, Paris), p. 4.
310 67. 68. 69. 70.
71. 72. 73. 74. 75.
76. 77.
78. 79. 80. 81. 82. 83. 84. 85.
86.
87. 88. 89.
NOTES (PAGES 275-84) European Parliament, Citizens' Europe, pp. 15-16. R. Koslowski, 'Intra-European migration, citizenship and political union', pp. 392-5. E. Meehan, 'Citizenship and the European Community', pp. 172-86. M. Miller, 'Dual citizenship: a European norm? (West Germany)', pp. 945-50; in 1963 the Council of Europe promoted a convention for the reduction of dual citizenship. This is no longer its policy. See Council of Europe, European Treaty Series, no. 43 (1978), Convention on the Reduction of the Cases of Multiple Nationality (1963) and Protocols of 1977 (Strasbourg, 1978). Appendix to Strasbourg Conference on Parliamentary Democracy: Colloquium on Democracy and Development in the Asia-Pacific Region. Joint Conference of French Senate and Parliamentary Assembly, Sub Theme I, Citizens'Participation in Political Life (Paris, 1993), p. 9. See D. Gomien, Short Guide to European Convention on Human Rights, for a short introduction. European Court of Human Rights, Rapport de la Commission 7 March 1991, Requetes Nos 14234/88 and 14235/88 M. Schermers, pp. 20 ff. See generally my 'Integration of Italian in European studies' in Proceedings of the Italian Conference towards 2000, pp. 239-44; see also F. Benoit-Rohmer, Proposals for a European Convention on the Protection of Minorities, and H. Hardiman, The Minority Question in Europe: Towards the Creation of a Coherent European Regime, pp. 30-1; ALHR/DECA 91/1 Strasbourg, 24 June 1991. A. Davidson, 'Italian from provincial to national', unpublished paper presented to the Lingua Italiana Conference, Comitato Assistenza Italiani (CO.AS.IT), Melbourne, December 1994. One of the speakers at the joint Senate/Parliamentary Assembly Conference on Citizens' Representative Democracy and European Construction noted at p. 47: 'Nothing will ever be possible unless the poorest of Europeans are convinced that they will be better off with Europe than without it'; see S. Rodota, Manifesto, 29 May 1994 for the proposed Constitution. Council of Europe, Convention on the Participation of Foreigners in Public Life at a Local Level, Explanatory Report, especially pp. 5-7. Local Referendums: Local and Regional Authorities in Europe, no. 52, p. 53. Citizens, Representative Democracy and European Construction, Sub Theme 2, Direct Democracy: merits and limits (Palais du Luxembourg, Paris, 1993). P. Keating, 'Election 1993 - the government's agenda', pp. 465-81. On the European experience, see my 'Regional politics: the European Union and citizenship'. For example, EPAC, Perspectives: On Shaping our Future and Ambitions for our Future and Australia 2010: Creating the Future of Australia. A. Davidson, 'The citizen who does not belong: multiculturalism, citizenship and democracy'. C. Stahl et al., Global Migration Movements: The Implications for Australia; Y. K. Ng, 'On the welfare economics of population control', pp. 247-66; Y. R. Ng and H. R. Clarke, 'The economic case for an open door policy', pp. 47-9; Ng and Clarke, 'Immigration and economic welfare: resource and environmental aspects', pp. 259-73; R. Rivett, 'Purpose and choice in Australian immigration policy', pp. 1-15. See, for example, the Government Response to the Civics Experts Group, Whereas the People: Civics and Citizenship Education Report of the Civics Expert Group, p. 3; and the themes and papers at the Futures Summit Conference at Parliament House, Canberra, 29 August 1995. N. Bobbio, II futuro della democrazia, p. 50; H. Kelsen, A General Theory of Law and the State, p. 289. See Horta v. The Commonwealth (1994) 68 ALJR 620 at 623, 624. H. de Jonge, 'Democrazie e sviluppo economico nella regione Asia-Pacifico', passim; Colloquy on Democracy and Development in the Asia Pacific Region: The Role of Parliamentary Institutions, Parliament House, Canberra, 22 to 23/10/92, pp. 77-82, 87, 92-3, 100 and passim.
NOTES (PAGES 284-6) 90. 91. 92. 93.
94. 95.
96. 97. 98.
311
Colloquy, see de Jonge, 'Democrazia e sviluppo economico', p. 562. H. de Jonge, 'Democracy and economic development in the Asia Pacific region: the role of parliamentary institutions', Human Rights Law Journal, XTV, no. 9-10, 1993, pp. 346-71. DFAT, Human Rights Manual, pp. 95-6; G. Evans, Cooperating far Peace: The Global Agenda for the 1990s and Beyond, pp. 12, 135-8, 140. R. Crocombe et al. (eds), Culture and Democracy in the South Pacific, S. Lawson, 'Conceptual issues in the comparative study of regime changes and democratisation', pp. 183-205; Lawson, 'Institutionalising peaceful conflict: political opposition and the challenge of democratisation in Asia', pp. 15-30; C. Ritova and E. Dean, No Other Way; A. Ravuvu, The Fijian Way of Life, The Fijian Ethos. I. Kant, Per la pace perpetua (N. Bobbio, ed.). E. Hobsbawm, Age of Extremes: A History of the World 1914-1991, ch. 19; A. Davidson, 'Consumer sovereignty and the citizen'; J. Goldring, 'Netting the sharks of cyberspace: consumer redress in the global economy' in Consumer Future Summit and Conference Background Papers, 29 August 1995, Parliament House, Canberra (Australian Consumers Council, Canberra, 1995). S. Huntington, 'The clash of civilisations?', pp. 23-49, especially p. 25. See M. Walzer, Spheres of Justice. D. Zolo, Democracy and Complexity: A Realist Approach; I have discussed this at length in my 'Globalism, the regional citizen and democracy in an Australian Republic', (forthcoming, Federation Press).
Select Bibliography
Books and Pamphlets Abramson, J., et al., The Electronic Commonwealth: The Impact of Media Technologies on Democratic Politics (Beck, New York, 1988). Amnesty International Report, 1994. Anderson, B., Imagined Communities (Verso, London, 1983, 1991). Anderson, H. (ed.), Tocsin: Radical Arguments against Federation 1897-1900 (Drummond, Melbourne, 1977). Anderson, K. and Garnaut, R., Australia's Protectionism: Extent, Causes, and Effects (Allen & Unwin, Sydney, 1987). Andrews, G. (ed.), Citizenship (Lawrence & Wishart, London, 1991). Annual Social justice Statements, 1992-1995 (AGPS, Canberra). Aristotle, The Athenian Constitution (Penguin, Harmondsworth, 1987). Aristotle, The Ethics (Everyman, London, 1947). Aristotle, The Politics (Penguin, Harmondsworth, 1986). Ata, A. I. W. and Ryan, C. (eds), The Ethnic Press In Australia (Academia Press and Footnote Publishers, Melbourne, 1989). Australia 2010: Creating the Future of Australia (Business Council of Australia, Melbourne, 1992). Australian Institute of Political Science, Liberty in Australia (Angus & Robertson, Sydney and Melbourne, 1955). Barbalet, J., Citizenship (Open University Press, Milton Keynes, 1988). Barber, B., Strong Democracy: Participatory Politics for a New Age (University of California Press, California, 1984). Beare, H. and Slaughter, M., Education for the Twenty-first Century (Routledge, London, 1993). Bennett, J., Aborigines and Political Power (Allen & Unwin, Sydney, 1992). Benoit-Rohmer, F., Proposals for a European Convention on the Protection of Minorities (Council of Europe, Strasbourg, 1991). Berger, V. (ed.), Case Law of the European Constitution of Human Rights (Irish University Press, Dublin, 1989). Berlin, I., Four Essays on Liberty (Oxford University Press, Oxford, 1969). Bhabha, H., Nations and Narration (Routledge, New York and London, 1990). Bird, G., The Role of Law as it Operates in a Multicultural Society (OMA, Canberra, 1988). 312
SELECT BIBLIOGRAPHY
313
Birnbaum, P., Lively, J., Parry, G., Democracy, Consensus & Social Contract (Sage, London and Beverly Hills, 1978). Birrell, R., A Nation of Our Own (Longman Cheshire, Melbourne, 1995). Biskup, P., Not Slaves Not Citizens (University of Queensland Press, Brisbane, 1973). Blainey, G., All for Australia (Methuen/Haynes, Melbourne, 1984). Bland, F. (ed.), Changing the Constitution (New South Wales Constitutional League, Sydney, 1950). Bobbio, N., Due secoli di democrazia europea (Department of Political Science, University of Perugia, 1986-87). Bobbio, N., Efuturo della democrazia (Einaudi, Turin, 1984). Bobbio, N., Italia fedele: il mondo di Gobetti (Passigli, Florence, 1986). Bobbio, N., VEta dei diritti (Einaudi, Turin, 1990). Bobbio, N., Liberalismo e democrazia (Angeli, Milan, 1991). Bobbio, N., Maestri e compagni (Passigli, Florence, 1984). Bobbio, N., Stato, governo, societd per una teoria generate della politica (Einaudi, Turin, 1985). Bobbio, N., Thomas Hobbes (Einaudi, Turin, 1989). Borgeest, T., Public Education and the Constitution: Constitutional Guarantees for Public Education, Discussion Paper No. 1 (Australian Education Union, Melbourne, 1994). Bosi, P., Farewell Australia (Kurunda, Sydney, 1972). Braddon, H., Essays and Addresses: Historical, Economic, Social (Angus & Robertson, Sydney, 1930). Braudel, F., Civilisations Materielles, Economie et Capitalisme xv-xviii Siecles (Colin, Paris, 1979). Brawley, S., The White Peril: Foreign Relations and Asian Migration to Australasia and North America 1919-1978 (University of New South Wales Press, Sydney, 1995). Brown, P. and Shue, H. (eds), Boundaries, National Autonomy and its Limits (Rowman & Littlefield, Towota, New Jersey, 1981). Bryce, J., Promoting Good Citizenship (Houghton Mifflin, Chicago, 1909). Buckley, K., All About Citizens' Rights (Nelson, Melbourne and Sydney, 1976). Burke s Speeches and Letters on American Affairs (Everyman, London and Toronto, 1924). Camilleri, J. and Falk, J., The End of Sovereignty: The Politics of a Shrinking and Fragmenting World (Elgar, Aldershot, 1992). Campbell, E. and Whitmore, H., Freedom in Australia (Sydney University Press, Sydney, 1966). Castles, F. (ed.), Australia Compared: People, Policies and Politics (Allen & Unwin, North Sydney, 1991). Castles, S. and Miller, S., The Age of Migration: International Population Movements in the Modern World (Macmillan, London, 1993). Castles, S., Cope, B., Kalantzis, M., Morrissey, M. Mistaken Identity, Multiculturalism and the Demise of Nationalism in Australia (Pluto, Leichhardt, 1990). Cattaneo, C , Opere scelte (Einaudi, Turin, 1972). Chaseling, B. C , (Australian Council of Young Farmers) in Digest Australian Citizenship Convention (Canberra, 1965). Citizens, Representative Democracy and European Construction, Sub Theme 2, Direct Democracy: Merits and Limits (Palais du Luxembourg, Paris, 1993). Clark, M. T., Pastor Doug: The Story of an Aboriginal Leader (Lansdowne Press, Sydney, nd).
314
SELECT
BIBLIOGRAPHY
Clayton, R. H., Civics and Citizenship (Robertson & Mullens, Melbourne, 1938). Cohen, E. A., Citizens and Soldiers: The Dilemmas of Military Service (Cornell University Press, Ithaca, 1985). Cohen, J. L., From a Historical Point of View: In Probability and Rationality (Rodpi, Amsterdam, 1991). Colletti, L., From Rousseau to Lenin (New Left Books, London, 1972). Colloquy on Democracy and Development in the Asia Pacific Region: The Role of Parliamentary Institutions, Parliament House, Canberra, 22-23/10/92 (Council of Europe, Strasbourg, 1993). Conac, G., and Amor, A., Islam et lesDroits de VHomme (Economica, Paris, 1994). Constant, B., Fragments d'un ouvrage abandonne sur la possibilite d'une constitution republicaine dans un grand pays (Aubier, Paris, 1991). Constant, B., Political Writings, B. Fontana (ed.), (Cambridge University Press, Cambridge, 1990). Coombs, H. C , Aboriginal Autonomy: Issues and Strategies (Cambridge University Press, Cambridge, 1994). Cooray, L. (ed), Human Rights in Australia (ACFR Community Education Project, NSW, 1985). Council of Europe, Convention on the Participation of Foreigners in Public Life at a Local Level (European Treaty Series, 1440 Strasbourg, 5 February 1992). Council of Europe, Convention on the Reduction of the Cases of Multiple Nationality (European Treaty Series, No. 43, Strasbourg, 1978). Council of Europe, People on the Move: New Migration Flows in Europe (Council of Europe, Strasbourg, 1992). Council of Europe, Political and Demographic Aspects of Migration Flows (Council of Europe, Strasbourg, 1993). Crisp, L., Ben Chifley (Longmans, Melbourne, 1963). Crocombe, R., et al. (eds), Culture and Democracy in the South Pacific (University of the South Pacific/Institute of Pacific Studies, Suva, 1992). Curthoys, A. and Merritt, J. (eds), Australia's First Cold War 1945-53 (Allen & Unwin, Sydney, 1984). Daes, E. I., Confidential Report, Chairperson's report to the United Nations Working Group on Indigenous Populations, 12 December 1987-1 February 1988. Daley, C. and Nolan, M. (eds), Suffrage and Beyond, International Feminist Perspectives (Auckland University Press/Pluto, Auckland and Sydney, 1994). Dallmayr, F. (ed.), .From Contract to Community (Martin Decker, New York, 1978). Dascal, M. (ed.), Cultural Relativism and Philosophy: North and Latin American Perspectives (E. J. Brill, Leiden, 1991). Davidson, A., The Invisible State: The Formation of the Australian State 1788-1901 (Cambridge University Press, Cambridge, 1991). Davidson, A. B. and Spegele, R. (eds), Rights, Justice and Democracy in Australia (Longman Cheshire, Melbourne, 1991). de Jaco, A. (ed.), H brigantaggio meridionale (Riuniti, Rome, 1969). de Maistre, J., De la souverainete du peuple: Un anti-contrat social (Presse universitaires, Paris, 1992). de Sanctis, F., Mazzini e la scuola democratica (Einaudi, Turin, 1951). Dempsey, K (ed.), Beyond the Headlines Politic: Australia and the World (PARC, University of Sydney, 1993). Detmold, M., The Australian Commonwealth, A Fundamental Analysis of its Constitution (Law Book Co., Sydney, 1985).
SELECT BIBLIOGRAPHY
315
Dicey, A. V., The Law of the Constitution (Macmillan, London, 1959). Dowty, A., Closed Borders: The Contemporary Assault on Freedom of Movement (Yale University Press, New Haven, 1987). Dumont, L., Essays on Individualism: Modern Ideology in Anthropological Perspective (University of Chicago Press, Chicago and London, 1986). Education for Active Citizenship: Australian Schools and Youth Organisations (AGPS, Canberra, 1988). Eggleston, F., Reflections of an Australian Liberal (Cheshire, Melbourne, 1953). Elkin, A. P., Citizenship for the Aborigines: A National Aboriginal Policy (Australasian Publishing Co., Sydney, 1944). Emden, C. S., The People and the Constitution (Clarendon, Oxford, 1959). Encyclopedia of European Community Law, Volume B, European Community Treaties (Sweet and Maxwell, London, 1991). Evans, G., Cooperating for Peace: The Global Agenda for the 1990s and Beyond (Allen & Unwin, Sydney, 1993). Evans, G., Storey, H., MacMillan, J., Australia's Constitution: Time for Change (Law Foundation of New South Wales and George Allen and Unwin, Sydney, 1983). Evans, G. (ed.), Law, Politics and the Labor Movement (Legal Service Bulletin, Melbourne, 1980). Fabricius, F., Human Rights and European Politics: The Legal-Political Status of Workers in the European Community (Berg/Fondation nationale des sciences politiques, Oxford/Paris, 1992). Filmer, R., Patriarcha (Cambridge University Press, Cambridge, 1991). Finkielkraut, A., La Sagesse de Vamour (Gallimard, Paris, 1984). Fitzpatrick, B., The Australian Commonwealth (Cheshire, Melbourne, 1956). Fitzpatrick, B., The Australian People 1788-1945 (Melbourne University Press, Melbourne, 1951). Fontaine, P., A Citizens' Europe (Office for Official Publications, European Community, Luxembourg, 1991. Fredre, D., Constitution and Citizenship: Peripatetic Influence on Cicero's Political Conception in the De republica in Cicero's Knowledge of the Peripatos (Transaction Books, New Brunswick, 1989). Fried, C. J. (ed.), Minorities: Community and Identity, Report of the Dahlem Workshop on Minorities: Community and Identity Berlin 1982, 28 November-3 December (Springer-Verlag, Berlin, 1983). Friedrich, C. (ed)., The Philosophy of Kant: Kant's Moral and Political Writings (Random House, New York, 1949). Galligan, B., et al., The Australian Rights Project (Australian National University, Canberra, 1993). Gaze, B. and Jones, M., Law, Liberty and Australian Democracy (Law Book Co., Sydney and Melbourne, 1990). Gellner, E., Nations and Nationalism (Blackwell, Oxford, 1983). Gisela, B., Beyond Equality and Difference (Routledge, New York, 1992). Glover, A. F., Legal Status of Aliens in Australia (Library of Congress, Washington, 1977). Gomien, D., Short Guide to European Convention on Human Rights (Council of European Research, Strasbourg, 1991). Green, T. H., Lectures on the Principles of Political Obligation and other Writings (Cambridge University Press, Cambridge, 1986). Hammer, T., Democracy and the Nation State: Aliens, Denizens and Citizens in a World of International Migration (Avebury, Aldershot, 1990).
316
SELECT
BIBLIOGRAPHY
Hardiman, H., The Minority Question in Europe: Towards the Creation of a Coherent European Regime (Centre for European Policy, Brussels, 1994). Headon, J., et al. (eds), Crown or Country (Allen & Unwin, Sydney, 1994). Heilbroner, R., Twenty-first Century Capitalism (Allen & Unwin, Sydney, 1992). Held, D., Political Theory and the Modem State (Polity, Oxford, 1989). Henkin, L. et al., Basic Documents Supplement to International Law Cases and Materials (West Publishing, Minnesota, 1980). Hirst, J., The Strange Birth of Colonial Democracy: New South Wales 1848-1884 (Allen & Unwin, Sydney, 1988). Hobbes, T,, A Dialogue between a Philosopher and a Student of the Common Laws of England (University of Chicago Press, Chicago, 1971). Hobbes, T., Leviathan (Washington Square, New York, 1964). Hobhouse, L. T., Liberalism (Oxford University Press, Oxford, 1964). Hobsbawm, E., Age of Extremes: A History of the World 1914-1991 (Pantheon, New York, 1994). Home, D., Power from the People: A New Australian Constitution, Victoria Fabian Party Pamphlet, no. 32. Horner, J., Vote Ferguson for Aboriginal Freedom: A Biography (Australian and New Zealand Book Co., Sydney, 1974). Horsman, M. and Marshall, A., After the Nation-State Citizens: Tribalism and the New World Disorder (Harper Collins, London, 1995). How to be Australian (National Centre for Australian Studies, Monash University, Clayton, 1994). Hoy, A., Civics for Australian Schools, 4th edn (Lothian, Melbourne, 1928). Hudson, W. and Carter, D. (eds), The Republicanism Debate (NSW University Press, Sydney, 1993). Hughes, C , Commonwealth Constitution: Methods for Initiating Amendments (October, 1989). Humana, C. (ed.), World Human Rights Guide (Oxford University Press, Oxford, 1992). Humboldt, W., Idee per un saggio sui limiti dello stato (II Mulino, Bologna, 1961). Immigrant Women's Health Project, Mercy Hospital (Migrant Access Project Scheme/Mercy Hospital, 1995). Ital-Unione Italiana di Lavoro, Australia/Victorian Law Foundation, La legge e il cittadino (Sydney, 1992). Jaensch, D. and Weller, P., Responsible Government in Australia (Australian Political Studies Association/Drummond, Melbourne, 1980). James, P. (ed.), Critical Politics (Arena, Department of Politics, Monash University, Clayton, 1994). Jones, M., Law, Liberty and Australian Democracy (Law Book Co., Sydney and Melbourne, 1990). Jordens, A-M., Redefining Australians: Immigration, Citizenship and National Identity (Hale & Iremonger, Sydney, 1995). Jowell, J. and Oliver, D. (eds), The Changing Constitution (Clarendon, Oxford, 1989). Junior Syllabus for Citizenship Education (Board of Secondary School Studies, Queensland, 1987). Jupp,J. (ed.), The Australian People: an Encyclopedia of the Nation, its People and their Origins (Angus & Robertson, Sydney, 1988). Kammen, M. G., Spheres of Liberty: Changing Perceptions of Liberty in American Culture (Cornell University Press, Ithaca and London, 1986). Kant, I., Critique of Pure Reason (Macmillan, London, 1985).
SELECT BIBLIOGRAPHY
317
Kant, I., Per la pace perpetua, N. Bobbio (ed.), (Editori Riuniti, Rome, 1985). Kant, I., Political Writings, H. Reiss (ed.), (Cambridge University Press, Cambridge, 1991). Kelsen, H., A General Theory of Law and the State (Harvard University Press, Cambridge, 1945). Keneally, T., Our Republic (Heinemann, Melbourne, 1993). Kennedy, P., Preparingfor the Twenty-first Century (Harper Collins, London, 1993). Kerr,J., Matters for Judgment: An Autobiography (Sun Books, Melbourne, 1978). Kirby, M., Reform the Law (Oxford University Press, Melbourne, 1983). Koven, S. and Michal, S. (eds), Mothers of a New World: Materialist Politics and Origins of Welfare States (Routledge, New York, 1993). Kukathas, C. (ed.), Multicultural Citizens: the Philosophy and Politics of Identity (Centre for Independent Studies, Sydney, 1993). Kymlicka, W., Multicultural Citizenship (Clarendon, Oxford, 1995). Labasse,J., Quelles regions pour I'Europe? (Flammarion, Paris, 1994). Legal Aid Commission/Victorian Council for Civil Liberties, Talking Rights: A Bill of Rights for Australians? (Victorian Council for Civil Liberties, Melbourne, 1995). Lipgens, W. (ed.), Documents on the History of European Integration, vol. Ill (de Gruyter, New York 1985-8). Lippman, L., Generations of Resistance: The Aboriginal Struggle for Justice (Longman Cheshire, Sydney and Melbourne, 1981). Local Referendums: Local and Regional Authorities in Europe, no. 52 (Council of Europe, Strasbourg, 1993). Locke, J., A Second Treatise on Government (Bobbs-Merrill, New York, 1952). Locke, J., Essay Concerning Human Understanding, A. C. Fraser (ed.), (Dover, New York, 1959). Locke, J., Works (Scientia Verlag, Aalen, 1963). Lumb, R., The Constitution and the Commonwealth of Australia, Annotated (Butterworths, Sydney, 1995). Maclntyre, A., After Virtue: A Study of Moral Theory (Duckworth, London, 1981). Macintyre, S., Winners and Losers: The Pursuit of Social Justice in Australian History (Allen 8c Unwin, Sydney, 1985). Macintyre, S. and Mitchell, R. (eds), Foundations of Arbitration: The Origins and Effects of State Compulsory Arbitration 1890-1914 (Oxford University Press, Melbourne, 1989). MacPherson, C. B., The Political Theory of Possessive Individualism (Clarendon, Oxford, 1962). Markus, A. (ed.), Blood from a Stone: William Cooper and the Australian Aborigines League (Monash Publications in History, no. 2, Melbourne, 1986). Markus, A. and Gammage, B. (eds), All That Dirt: Aborigines 1938 (Australian National University, Canberra, 1982). Marsh, I. (ed.), Governing in the 1990s: an Agenda for the Decade (Longman Cheshire, Melbourne, 1993). Marshall, T. H., Citizenship and Social Class and other essays (Cambridge University Press, 1950). Marx, K., 'On the Jewish Question' - in Collected Works, vol. Ill (Lawrence & Wishart, London, 1975). McCallum, R. and Tracey, R. R. S., Cases and Materials on Industrial Law in Australia (Butterworths, Sydney and Melbourne, 1980). McHugh, P., The Maori Magna Carta: New T^ealand Law and the Treaty ofWaitangi (Oxford University Press, Auckland, 1991).
318
SELECT
BIBLIOGRAPHY
McMinn, W., A Constitutional History of Australia (Oxford University Press, Melbourne, 1979). McNally, W., Goodbye Dreamtime (Nelson, Melbourne, 1973). McNeil, W. Polyethnicity and National Unity in World History (University of Toronto, Toronto, 1988). Medding, P., From Assimilation to Group Survival: a Political and Sociological Study of an Australian Jewish Community (Cheshire, Melbourne, 1968). Menzies, R., Afternoon Light: Some Memories of Men and Events (Cassell, Melbourne, 1967). Menzies, R., Central Power in the Australian Commonwealth (Cassell, Melbourne, 1967). Middleton, H., But Now We Want the Land Back: A History of the Aboriginal People (New Age Publishers, Sydney, 1977). Mill, J. S., On Liberty with the Subjection of Women and Chapters on Socialism, S. Collini (ed.), (Cambridge University Press, Cambridge, 1991). Mill, J. S., Utilitarianism, and Representative Government (Everyman, London, 1964). Miller, D., Market, State and Community: Theoretical Foundations of Market Socialism (Clarendon Press, Oxford, 1989). Monaghan, J., Commerce the 1990s Way (Longman Cheshire, Melbourne, 1991). Monnet, J., Memoirs (Collins, London, 1978). Moore, W. H., The Constitution of the Commonwealth of Australia (John Murray, London, 1902). Mouffe, C. (ed.), Dimensions of Radical Democracy, Pluralism, Citizenship, Democracy (Verso, London, 1992). Mouffe, C , The Return of the Political (Verso, London, 1993). Muetzelfeldt, M. (ed.), A Society: State and Politics in Australia (Deakin, Pluto, Melbourne, 1992). Munro-Clark, M. (ed.), Citizen Participation in Government (Hale & Iremonger, Sydney, 1992). Nettheim, G., Aboriginal Legal Issues: Commentary and Materials (Law Book Co., Sydney and Melbourne, 1991). Noiriel, G., La tyrannie du national: Le droit d'asile en Europe 1793-1993 (CalmannLevy, Paris, 1991). Parry, C , Natonality and Citizenship Laws of the Commonwealth and of the Republic of Ireland (Steven and Sons, London, 1957). Passerin d'Entreves, M., The Philosophy of Hannah Arendt (Routledge, New York, 1994). Pattarin, M., UAnima del Risorgimento italiano: Documenti letterari del Risorgimento del 1815 al 1861 (Cappelli, San Casciano, 1959). Pixley, J., Citizenship and Employment: Investigating Post-Industrial Options (Cambridge University Press, Cambridge, 1993). Plato, The Protagoras and Meno (Penguin, Harmondsworth, 1987). Plender, R. (ed.), Basic Documents on International Migration Law (Nijhoff, The Hague, 1988). Pocock, J., The Machiavellian Political Moment (Princeton University Press, Princeton, 1973). Powell, B., Immigration, Citizenship and Human Rights in Australia (Clearing House on Migration Issues, Richmond, Victoria, 1993). Proudhon, P. J., Principe federatif et oeuvres diverses sur les problemes politiques europeens (Riviere, Paris, 1959). Pryles, M. C , Australian Citizenship Law (Law Book Co., Sydney, 1980).
SELECT BIBLIOGRAPHY
319
Quademi di Giustizia e liberta, January 1932. Ravuvu, A., The Fijian Ethos (Institute of Pacific Studies/ University of the South Pacific, Suva, 1987). Ravuvu, A., The Fijian Way of Life (Institute of Pacific Studies/University of the South Pacific, Suva, 1983). Reich, R., The Work of Nations: Preparing for the Twenty-First Century (Vintage, New York, 1992). Renan, E., Quest-ce qu'une nation (Presses Pocket, Paris, 1992). Reynolds, H., Fate of a Free People: A Radical Re-examination of the Tasmanian Wars (Penguin, Melbourne, 1995). Ritova, C. and Dean, E., No Other Way (Marketing Team International, Suva, 1989). Roche, M., Rethinking Citizenship Welfare, Ideology and Change in Modern Society (Polity, Cambridge, 1992). Rorty, R., Essays on Heidegger and Others: Philosophical Papers (Cambridge University Press, Cambridge, 1991). Rorty, R., Schneewind, J. B. and Skinner, Q. (eds), Philosophy in History: Essays on the Historiography of Philosophy (Cambridge University Press, Cambridge, 1984). Rosselli, C , Socialismo liberale, G. L. Clandestino (ed.), (nd). Rousseau, D. and Sudre, F., Conseil constitutionnel et Cour europeene des Droits de VHomme. Droits et libertes en Europe (STH, Geneva, nd). Rousseau, J-J., Oeuvres completes (Seuil, Paris, 1971). Rousseau, J-J., Saggio sull'origine delle lingue (Einaudi, Turin, 1989). Rowley, C , The Remote Aborigines (Australian National University Press, Canberra, 1971). Sack, P. (ed.), Pacific Constitutions (Australian National University, Canberra, 1982). Salvaris, M., Public Education, Citizenship and Constitutional Reform: Constitutional Guarantees for Public Education, Discussion Paper No. 2 (Australian Education Union, Melbourne, 1995). Saunders, P. (ed.), Wealth and Inequality (Cambridge University Press, Cambridge, 1994). Schmitt, C , La notion du politique et la theorie du partisan (Calmann-Levy, Paris, 1972). Schuman, R., Pour FEurope (Nagel, Paris, 1963). Scutt, J. (ed.), Lionel Murphy: A Radical Judge (McCulloch/Macmillan, Melbourne, 1987). Secretariat d'Etat aupres du ministre charge du plan, Entrer dans le XXIeme siecle. Essai sur Vavenir de Videntiie francaise (La Decouverte/La Documentation francaise, Paris, 1992). Simon, E., Through My Eyes (Rigby, Sydney and Melbourne, 1979). Smith, A., National Identity (Penguin, London, 1991). Smith, A., The Ethnic Origins of Nations (Blackwell, Oxford, 1987). Smith, H. and Biddle, E., Look Forward, Not Back: Aborigines in Metropolitan Brisbane 1965-1966 (Australian National University Press, Canberra, 1975). Starobinski, J., Jean-Jacques Rousseau. Transparency and Obstruction (University of Chicago Press, Chicago, 1980). Stewart, J., A Documentary Survey of the French Revolution (Macmillan, New York, 1963). Stone, S. (ed.), Aborigines in White Australia: A Documentary History of the Attitudes Affecting Official Policy and the Australian Aborigine, 1697-1973 (Heinemann, Melbourne, 1974).
320
SELECT BIBLIOGRAPHY
Strasbourg Conference on Parliamentary Democracy: Colloquium on Democracy and Development in the Asia-Pacific Region, Appendix (Council of Europe, Strasbourg, 1993). Sullivan, J., Banggaiyerri: The Story of Jack Sullivan as told to Bruce Shaw (ALAS, Canberra, 1983). Talmon, J., The Origins of Totalitarian Democracy (Mercury, London, 1961). Tampke, Jurgen (ed.), Wunderbar Country: Germans Look at Australia 1850-1914 (Hale & Iremonger, Sydney, 1982). Taswell-Langmead, T. P., English Constitutional History from the Teutonic Conquest to the Present Time (Stevens & Haynes, London, 1886). Tatz, C , Race Politics in Australia: Aborigines, Politics and Law (University of New England Publishing Unit, Armidale, 1979). Tatz, C. and McConnochie, K. (eds), Black Viewpoints: The Aboriginal Experience (Australian and New Zealand Book Co., Sydney, 1975). Teaching Young Australians to be Citizens (Monash University, Clayton, 1995). Tenezakis, M., The Content of Three Sydney Based Ethnic Newspapers (Macquarie University, Sydney, 1982). Terrenoire, A., Le Parlement europeen (Cherche-Midi, Paris, 1994). The Citizens and the Single Market (ECSC-EAC-EAEC, Luxemburg, Brussels, 1993). The Strasbourg Consensus (Council of Europe, Strasbourg, 1983). Theophanous, A., Understanding Social Justice: An Australian Perspective (Elikia, Melbourne, 1993). Thompson, J., Justice and World Order: A Philosophical Inquiry (Routledge, London and New York, 1992). Thucydides, The Peloponnesian War (Penguin, Harmondsworth, 1964). Tiryakian, E. and Rogowski, R. (eds), New Nationalisms of the Developed West (Allen & Unwin, Boston, 1985). Trotter, W. F., The Citizen and his Duties (T. C. 8c E. C.Jack, London, 1907). Tully, J., An Approach to Political Philosophy: Locke in Contexts (Cambridge University Press, Cambridge, 1993). Turner, B., Citizenship and Capitalism (Allen & Unwin, London, 1986). Ulargiu, R., Razza operaia: Intervista a Yann Moulier Boutang (Calusca, Padua, 1992). United Nations Development Report 1994 (Oxford University Press for United Nations Development Program, New York, 1994). Uniting Church, Sentenced to Silence, 14 December 1987 (Uniting Church, StJames, NSW). van Steenberg, B., The Condition of Citizenship (Sage, London, 1994). Venturini, G. (ed.), Five Voices for Lionel: the Lionel Murphy Memorial Lectures (Federation Press, Sydney, 1994). Venturini, G., Malpractice: The Administration of the Murphy Trade Practices Act, Anti-Trust as an Australian Poshlost (Non Mollare, Sydney, 1980). Vision and Reality: The Centenary History of State Education in Victoria (Education Department, Victoria, 1973). Vramplew, W. (ed.), Australian Historical Statistics (Fairfax, Syme, Weller, Sydney, 1987). Wallerstein, I., The Capitalist World Economy: Essays (Cambridge University Press and Maisons des Sciences de I'Homme, Paris, 1979). Wallerstein, I., The Modern World System (Academic Press, New York, 1974). Walzer, M., Spheres of Justice: A Defence of Pluralism and Equality (Basic Books, New York, 1983). Wannan, B., The Wearing of the Green: The Lore, Literature, Legend and Balladry of the Irish in Australia (Cheshire, Melbourne and London, 1966).
SELECT BIBLIOGRAPHY
321
Warden, J., Headon, D., Gammage, B. (eds), Crown & Country: The Traditions of Australian Republicanism (Allen & Unwin, Sydney, 1994). Watson, D., Brian Fitzpatrick: A Radical Life (Hale & Iremonger, Sydney, 1978). Webb, L., Communism and Democracy in Australia (Cheshire, Melbourne, 1954). Weber, E., From Peasants to Frenchmen: The Modernisation of Rural France 1870-1914 (Chatto & Windus, London, 1979). Whitlam, E. G., On Australia's Constitution (Widescope, Melbourne, 1977). Whitlam, E. G., The Whitlam Government 1972-1975 (Viking, Melbourne, 1994). Wievorka, M., La democratie a Vepreuve: Nationalists, populisme, ethnicite (La Decouverte, Paris, 1993). Wilson, P., Immigrants and Politics (Australian National University Press, Canberra, 1973). Wistrich, E., The United States ofEurope (Routledge, London and New York, 1993). Zolo, D., Democracy and Complexity: A Realist Approach (Polity, Cambridge, 1992). Government Publications Access and Equity; Educational Guide for the Australian Public Service (OMA/Office of PM and Cabinet, AGPS, Canberra, 1993). Administrative Review Council (Australia), Citizenship Review and Appeals System (AGPS, Canberra, 13 June 1980). Annual Social Justice Statements, 1992-1995 (AGPS, Canberra). Australia. Parliament: Senate Standing Committee on Employment, Education and Training, Active Citizenship Revisited: Report by the Senate Standing Committee on Employment, Education and Training (Publications Unit, Department of the Senate, Canberra, 1991). Australia. Parliamentary Joint Standing Committee on Electoral Matters, One Vote One Value Inquiry into the Constitutional Alteration (Democratic Elections) Bill, 1987 Report no. 1 of the Joint Standing Committee on Electoral Matters (AGPS, Canberra, 1988). Australia. Representative Advisory Committee, An Australian Republic: Report of the Republican Advisory Committee (AGPS, Canberra, 1993). Australia. Migrant Services and Programs, Report on the Review of Post-Arrival Programs and Services for Migrants (AGPS, Canberra, 1978). Australian Constitutional Commission Report on Individual and Democratic Rights (Constitutional Commission, Sydney, 1987). Australian Constitutional Commission, Constitutional Commission Final Report Summary (AGPS, Canberra, 1988). Australian Constitutional Commission, First Report of the Constitutional Commission, April 1988 (AGPS, Canberra, 1988). Australian Constitutional Commission, First Report of the Constitutional Commission, Summary, May 1988 (AGPS, Canberra, 1988). Australian Constitutional Convention (1985), Official Records of the Debates of the Australian Constitutional Convention, Proceedings, Brisbane, 1985 (Government Printer, Queensland, 1985). Australian Government Weekly Digest, vol. I, no. 33, 10-16 November 1975. Australian Human Rights Commission, The Human Rights of Australian-Born Children, (AGPS, Canberra, 1984). Australian Laws, Statutes of the Commonwealth Parliament of Australia (Australian Government Printer, Canberra). Australian Treaty Series 1980 (AGPS, Canberra, 1980). Census 1981, Department of Immigration and Ethnic Affairs, Consolidated Statistics No. 13 (AGPS, Canberra, 1982).
322
SELECT BIBLIOGRAPHY
Citizens' Initiated Legislation Report, 1994 Annual Report of the Western Australian Electoral Commission, 1994. Civics Expert Group, Whereas the People: Civics and Citizenship Education Report of the Civics Expert Group (AGPS, Canberra, 1994). Colloquy on Democracy and Development in the Asia Pacific Region: The Role of Parliamentary Institutions, Parliament House, Canberra, 22-23/10/92 (Council of Europe, Strasbourg, 1993). Committee to Advise on Australia's Immigration Policies, Immigration: A Commitment to Australia. The Report of the Committee to Advise on Australia's Immigration Policies (AGPS, Canberra, 1988). Commonwealth of Australia Constitution Bill Debates in the Imperial Parliament with Appendices (Wyman, London, 1927). Department of Foreign Affairs and Trade, A Review of Australian Efforts to Promote and Protect Human Rights (AGPS, Canberra, 1992). Department of Foreign Affairs and Trade, Human Rights Manual (AGPS, Canberra, 1993). Department of Foreign Affairs, Convention on the Reduction of Statelessness, Treaty Series, 1975, no. 46 (AGPS, Canberra, 1976). Department of Foreign Affairs, Convention relating to the Status of Stateless Persons, Treaty Series, 1974, no. 20 (AGPS, Canberra, 1975). Department of Immigration and Ethnic Affairs, Australian Citizenship: No. 3, Citizenship by Grant (naturalisation), 976i (McMillan Print, Commonwealth of Australia, 1992). Department of Immigration and Ethnic Affairs, Australian Citizenship: No. 7, Becoming a Citizen - what you should know, 996i (McMillan Print, Commonwealth of Australia, 1994). Department of Immigration and Ethnic Affairs, Conference on Migrant Taskforces Objectives — Citizenship and Settlement Policy (1974). Department of Immigration and Ethnic Affairs, Submission to the Joint Standing Committee on Migration Inquiry into Enhancing the Meaning of Australian Citizenship (Department of Immigration and Ethnic Affairs, Canberra, 1994). Department of Prime Minister and Cabinet, Office of Multicultural Affairs, National Agenda for a Multi-Cultural Australia: Sharing Our Future (AGPS, Canberra, 1989). EC Background: European Community Information Note (Delegation of the European Communities to Australia and New Zealand), 15 October 1993. Economic Planning Advisory Council, Ambitions for our Future: Australian Views (AGPS, Canberra, 1994). Economic Planning Advisory Council, Perspectives on Shaping our Future (AGPS, Canberra, 1994). Economic Planning Advisory Council, Ambitions for our Future (AGPS, Canberra, 1994). Ethnic Affairs Commission, NSW, Participation, Report to the Premier, June 1978 (Government Press, Sydney, 1978). European Court of Human Rights, Rapport de la Commission, 7 March 1991, Requetes Nos 14234/88 and 14235/88 M. Schermers. European Parliament Directorate General for Research, Citizens*Europe: Action Taken by the European Parliament to Create a European Community to Serve its Citizens (Citizen Europe Series El, Luxembourg, 1992). Evidence before the Senate Inquiry on Social Benchmarks for Citizenship (Government Printer, Canberra, 1995). Ideas for Australia Committee, 'What is a citizen?' (AGPS, Canberra, 1994).
SELECT BIBLIOGRAPHY
323
Individual and Democratic Rights Report of the Advisory Committee to the Constitutional Commission (Commonwealth of Australia, Canberra Publishing and Printing Co., Canberra, 1987). Junior Syllabus for Citizenship Education (Board of Secondary School Studies, Queensland, 1987). Legislative Assembly of the Northern Territory, Sessional Committee on Constitutional Development, Citizens Initiated Referendums, Discussion Paper no. 3, August 1991 (Government Printer, Darwin, 1991). Legislative Assembly of the Northern Territory, Sessional Committee on Constitutional Development, Discussion Paper no. 4, Recognition of Aboriginal Customary Law (Government Printer, August 1992). Moss, I., State of the Nation. A Report on People of non-English speaking Backgrounds (AGPS, Canberra, 1993). Official Record of the Debates of the Australasian Federal Convention, 3rd Session, Melbourne (Government Printer, R. S. Brain, Melbourne, 1898). Official Record of the National Australasian Convention Debates, Adelaide, 1897 (C. E. Bristow, Adelaide, 1897). Official Report of the National Australasian Convention Debates, Sydney, 2 March to 9 April 1891 (Government Printer, Sydney, 1891). One People, One Destiny, papers given at a series of Senate Department Occasional Lectures to commemorate the centenary of the National Australasian Convention, (Senate, Parliament House, Canberra, 1991). Parliament of the Commonwealth, Department of Foreign Affairs and Trade, A Review of Australia s Efforts to Promote and Protect Human Rights (AGPS, Canberra, 1992). People Power Teacher Pack (Government Printer, Canberra, 1988). Report of the Advisory Committee on Executive Government (AGPS, Canberra, 1987). Senate Legal and Constitutional Reform Committee, discussion paper, A System of National Citizenship Indicators (May 1995). Stahl, C , et al., Global Population Movements and their Implications for Australia (AGPS, Canberra, 1993). The European Parliament after the 1994 Elections: Assessment of the Challenges, report of the seminar 'The European Parliament confronting the challenges of integration', Brussels, 21-22 March 1994 (Bonn/Brussels, 1994). Walker, D. de Q., Constitutional Changes in the 1990s: Moves for Direct Democracy, Senate Occasional Lecture Series, 17 March 1993 Canberra. Western Australian Department of Native Affairs, Annual Report of the Commissioner of Native Affairs (Government Printer, Perth, 1937-51). Western Australian Department of Native Affairs, Annual Report of the Commissioner of Native Welfare (Government Printer, Perth, 1956-72).
Journal Articles, Working and Conference Papers 'Citizens of Europe', Economist, vol. 315, 21 April 1990. 'One of us or one of them?' ' (New citizenship laws in new states are raising old worries)', Economist, vol. 328, 31 July 1993. 'What is a European?', Economist, vol. 320, 17 August 1991. Aqkerman, B., 'Why dialogue?', Journal of Philosophy, vol. LXXXVI, no. 1, January 1989. Barber, B. R., 'Global democracy or global law: which comes first?', Global Legal
324
SELECT BIBLIOGRAPHY
Studies Journal, vol. 1, issue 2, Fall 1993 (Internet http://www.law.indiana. edu/glsj/voll/tocv.html). Barcesat, E. C, 'Socialisme et droits de l'homme: une edification conjointe', ActuelMarx, no. 16, 1994. Barnett, D., 'How the bloated ethnic industry is dividing Australia', Bulletin, 18 February 1986. Beilharz, P., 'Citizens and democrats', Australian Left Review, September 1991. Beilharz, P., 'Welfare and citizenship in Australia after World War Two: a parting of the ways', Australian Quarterly, vol. 63, no. 3, Spring 1991. Bland, F. A., 'Does totalitarianism menace Australian democracy?', Public Administration, June 1939. Bland, F. A., 'Post-war constitutional reconstruction', Australian Journal of Public Administration, September-December 1940. Board, P., 'Australian citizenship', Journal and Proceedings of the Royal Australian Historical Society, vol. V, 1920.
Bobbio, N., 'Dialogo sulle istituzioni', Micromega, 1986. Bobbio, N., 'Nuova destra e cultura reazionaria negli anni ottanta', Notiziario delllstituto storico delta Resistenza, 23 June 1983.
Brosio, R., 'The continuing importance of the quest for the big picture and common good: the centrality of Rousseau's citizen and Marx's worker', Philosophical Studies in Education, no. 1, 1992.
Brubaker, R., 'Nationhood and the national question in the Soviet Union and post-Soviet Eurasia: an instinationalist account', Theory and Society, no. 23, 1994. Buckler, S., 'Moral weakness and citizenship in Aristotle', Polis, vol. 10, no. 1, 1991. Caiden, D., 'The ombudsman and the rights of the citizen', Australian Quarterly, September 1964. Castan, R., 'The Mabo case', Journal of the Australian Society of Labor Lawyers,
Melbourne, 23 May 1992. Castles, S., 'L'Europe a-t-elle quelque chose a apprendre de l'Australie?', Homines et Migrations, no. 1159, 1993.
Castles, S., The Challenge of Multiculturalism: Global Changes and Australian Experi-
ence, Working Papers on Multiculturalism, no. 19 (OMA, Department of Prime Minister and Cabinet, Centre for Multicultural Studies, University of Wollongong, 1992).
Castles, S., Kalantzis, M., et al., The Bicentenary and the Failure of Australian
Nationalism, Working Paper no. 5 (Centre for Multicultural Studies, University of Wollongong, 1987). Chilton, P. and Ilyin, M., 'Metaphor in political discourse: the case of the "common European house"', Discourse & Society, vol. 4, no. 1, 1993. Church, R. D., 'We the people: reflections on the meaning of the "people" in the Constitution of the United States of America', II Politico, Universita di Pavia, Italy, vol. LVII, no. 2, 1992. Clarke, B., 'The substance of polities', History of Political Thought, vol. Ill, no. 2, Summer, 1982. Closa, C, 'The concept of citizenship in the Treaty of the European Union', Common Market Law Review, vol. XXIX, no. 6, 1 December 1992. Collins, J., John Chinaman and John Newman challenging Asian stereotyping', Australian Quarterly, vol. LXVI, no. 4, Summer, 1994. Connolly, C, 'Australia's human rights record', Polemic, May 1990. Coughlan, J., 'A comparative analysis of ethnicity, English proficiency and
SELECT BIBLIOGRAPHY
325
religion of Australia's Indochinese-born communities 1976-86', Australia Asian Papers, no. 54, Centre for the Study of Australia-Asia Relations, Griffith University, Nathan, December 1990. Cuneen, C , 'Aboriginal imprisonment during and since the Royal Commission into Aboriginal deaths in custody', Aboriginal Law Bulletin, vol. II, no. 55, 1992. Dagger, R., 'Metropolis, memory, and citizenship', American Journal of Political Science, vol. 25, no. 4, November 1981. Davey, W. J., 'European integration: reflections on its limits and effects', Global Legal Studies Journal, vol. 1, issue 2, Fall, 1993 (Internet http://www. law.indiana.edu/glsj/voll/davey.html), Davidson, A., 'Citizenship, sovereignty and the identity of the nation-state' in James, P. (ed.), Critical Politics (Arena, Department of Politics, Monash, Clayton, 1994). Davidson, A., 'Consumer sovereignty and the citizen', Consumer Future Summit and Conference Background Papers, 29 August 1995, Parliament House, Canberra (Australian Consumers Council, Canberra, 1995). Davidson, A., 'Dilemma of liberal socialism: the case of Norberto Bobbio', Australian Journal of Politics and History, vol. XLI, no. 1, 1995. Davidson, A., 'Integration of Italian in European studies' in Proceedings of the Italian Conference towards 2000 (Victoria University of Technology/Italian Cultural Institute, Melbourne, 1994). Davidson, A., 'Regional politics: the European Union and Citizenship', paper presented to the Conference of European Historians, University of New South Wales, 12 to 15 July 1995, (forthcoming). Davidson, A., 'The citizen who does not belong: multiculturalism, citizenship and democracy', paper forthcoming in Proceedings of the Conference on Ethics and Democracy (Lisbon, 1994). de Jonge, H., 'Democrazia e sviluppo economico nella regione Asia-Pacinco', Rivista di studii politici internazionali, vol. LXI, no. 244, 1994. de Lusignan, G., 'Global migration and European integration', Global Legal Studies Journal, vol. 2, issue 1, Fall, 1994 (Internet http://www.law. indiana. edu/glsj/vol2/tocv2il.html). Delbruck, J., 'Global migration-immigration - multi-ethnicity, challenges to the concept of the nation state', Global Legal Studies Journal, vol. 2, issue 1, Fall, 1994 (Internet http://www.law.indiana.edu/glsj/vol2/tocv2il.html). Downing, L. and Thigpen, R. B., 'Civic republicanism and its critics: beyond shared understandings', Political Theory, vol. 14, no. 3, August 1986. Durand, A., 'European citizenship' 4 EC Law Review, 3-14. Eliot, G., 'Kimberley justice appeal', Legal Service Bulletin, vol. 5, p. 122. Elliot, G., 'Community as compulsion? A reply to Skillen on citizenship and the state', Radical Philosophy, Summer, 1991. Evans, G., 'Labor and the Constitution', Meanjin, no. 1, 1976. Evans, G., 'An Australian bill of rights', Australian Quarterly, vol. XXXXV, no. 1, March 1973. Evans, H., 'A note on the meaning of Republic', Legislative Studies, vol. 6, no. 2, 1992. Foxcroft, E. J. B., 'The changing balance of the Commonwealth', Public Administration, December 1946. Galeotti, A. E., 'Citizenship and equality: the place for toleration', Political Theory, vol. 21, no. 4, November 1993. Galligan, B. and Russell, P., 'The politicisation of the judiciary in Australia and
326
SELECT BIBLIOGRAPHY
Canada', Australian Quarterly, Winter, 1995. Galligan, B., 'Federalism's ideological dimension and the Australian Labor Party', Australian Quarterly, Winter, 1981.
Goldring, J., 'Netting the sharks of cyberspace: consumer redress in the global economy' in Consumer Future Summit and Conference Background Papers, 29 August 1995, Parliament House, Canberra (Australian Consumers Council, Canberra, 1995). Goodin, R., 'What is so special about our countrymen?', Ethics, July 1988. Gray, M., 'A Victorian bill of rights: judicial review and other issues', Australian Quarterly, vol. XLI, no. 1, Autumn, 1991. Habermas, J., 'Citizenship and national identity: some reflections on the future scope of Europe', Praxis International, vol. 12, no. 1, 1 April 1992. Heller, A., 'Rationality and democracy', Philosphy and Social Criticism, vol. 8, no. 3, Fall, 1983. Hirsch, H. N., 'Civic republicanism and its critics', Political Theory, vol. 14, no. 3, August 1986. Hollis, M., 'Friends, Romans, and consumers', Ethics, vol. 102, no. 1, October 1991. Hotop, S. D., 'The federal commerce power and labour relations', Australian Law Journal, no. 48, April 1974. Howe, B., Renewing the Commonwealth, The Fourth Sambell Memorial Oration, 2 December 1990 (Brotherhood of St Laurence). Huntington, S. P., 'The clash of civilisations?', Foreign Affairs, vol. LXXII, Summer, 1993. Inglis, C, 'Australia's refugee policy in an international context', Australian Quarterly, vol. LXVI, no. 4, 1994. Jayal, N. G., 'Ethnic diversity and the nation state', Journal of Applied Philosophy, vol. 10, no. 2, 1993. Jayasuriya, L., 'State, nation and diversity in Australia', Current Affairs Bulletin, November 1991, pp. 21-7. Jordens, A-M., Redefining 'Australian Citizen' 1945-75 (Working Paper 8, Administration, Compliance and Governability Programme, Australian National University, 1993). Jordens, A-M., Promoting Australian Citizenship, 1949-71 (Working Paper, Administration, Compliance and Governability Programme, Australian National University, August 1994). Keating, P., 'Election 1993 - the government's agenda', Australian Quarterly, Autumn, 1993. Keating, P., 'New visions for Australia', Australian Quarterly, vol. LXV, no. 1, 1993. Kingwell, M., 'Interpretation, dialogue and the just citizen', Philosophy Social Criticism, vol. 19, no. 2, 1993. Kirby, M., Tn defence of the constitutional monarchy', Quadrant, September 1993. Koslowski, R., Tntra European migration, citizenship and political union', Journal of Common Market Studies, vol. XXXII, no. 3, September 1994. Kymlicka, W. and Norman, W., 'Return of the citizen: a survey of recent work on citizenship theory', Ethics, vol. 104, no. 2, January 1994. Ladrech, R., 'Europeanisation of domestic politics and institutions: the case of France', Journal of Common Market Studies, vol. XXXII, March 1994.
Lake, M., 'Personality, individuality, nationality: feminist conceptions of citizenship 1902-1940', Australian Feminist Studies, no. 19, Autumn, 1994. Lawson, S., 'Conceptual issues in the comparative study of regime changes and
SELECT BIBLIOGRAPHY
327
democratisation', Comparative Politics, vol. XXI, no. 2, 1993. Lawson, S., 'Institutionalising peaceful conflict: political opposition and the challenge of democratisation in Asia', Australian Journal of International Affairs, vol. XLVII, no. 1, 1992. Leisner, W., 'The foreign relations of the member states of the Federal Republic of Germany', University of Toronto Law Journal, vol. XVI, 1965-66.
Ludeke, the Hon. J. T., 'The external affairs power: another province for law and order', Australian Law Journal, no. 68, April 1994. Macintyre, S., 'What's in a nation?', Eureka Street, vol. 1, no. 6, August 1991. Maddox, G. and Archer, J., 'The concept of "Politics" in Australia', Politics, May 1976. Mantello, M., 'The Italian transformation of Werribee', Vaccari Historical Trust, Italians in Australia Conference, Melbourne, 1985. Mason, A., 'Liberalism and the value of community', Canadian Journal of Philosophy, vol. 23, no. 2, June 1993. McLaughlin, T. H., 'Citizenship, diversity and education: a philosophical perspective', Journal of Moral Education, vol. 21, no. 3, 1992. Meehan, E., 'Citizenship and the European Community', Political Quarterly, vol. LXIV, April/June 1993. Miller, D., 'The ethical significance of nationality', Ethics, July 1988. Miller, M. J., 'Dual citizenship: a European norm?' (West Germany), International Migration Review, vol. 23, Winter, 1989. Mouffe C, 'Democratic citizenship and the political community' in Miami Theory Collective (ed.), Community at Loose Ends (University of Minnesota Press, Minneapolis, 1991). Nauta, L., 'Changing conceptions of citizenship', Praxis International, vol. 12, no. 1, April 1992. Nett, R., 'The civil right we are not ready for: the right of free movement of people on the face of the earth', Ethics, vol. LXXXI, 1970-71. Ng, Y. K, 'On the welfare economics of population control', Population and Development Review, vol. XII, no. 2, 1986. Ng, Y. K and Clarke, H. R., 'The economic case for an open door policy', Policy, vol. VII, no. 1, 1991. Ng, Y. K. and Clarke, H. R., 'Immigration and economic welfare: resource and environmental aspects', Economic Record, vol. LXIX, no. 206, 1993. O'Malley, P., 'Global politics and national policies: editorial social justice in the client state', Social Justice, vol. XVI, no. 3, Fall, 1989. Papadakis, E. and Bean, C, 'Independents and minor parties: the electoral system' and 'Minor parties and independents: electoral bases and future prospects', Australian Journal of Political Science, vol. XXX, 1995.
Parker, R., 'Australian Federation: the influence of economic interests and
political pressures' in Historical Studies: Selected Articles, First Series
(Melbourne University Press, Melbourne, 1967). Paterson, P. A., 'Federal electorates and proportionate distribution', Australian Law Journal, vol. 42, no. 127, 1968. Pitty, R. and Hughes, I., 'Australian colonialism after Mabo', Current Affairs Bulletin, 7 June 1994. Rivett, R., 'Purpose and choice in Australian immigration policy', Australian Quarterly, vol. LXVI, no. 4, 1994. Rodota, S., Manifesto, 29 May 1994. Rodata, S., 'Sovereignty in the age of technopolitics', Interparliamentary Conference on Citizens, Representative Democracy and European
328
SELECT BIBLIOGRAPHY
Construction, 16-18 September 1993, Senat, Palais de Luxembourg, Paris. Rowley, K., 'The fall of Labor and the return of the 1955 Chiko Roll', Intervention, 6June 1976. Russell, P., 'The politicisation of the judiciary in Australia and Canada', Australian Quarterly, Winter, 1995. Sawer, G., 'The Australian Constitution and the Australian Aborigine', Federal Law Review, vol. 2, 1966, p. 36. Simpson, G., 'Mabo, international law, terra nullius and the stories of settlement: an unresolved jurisprudence', Monash University Law Review, vol. 19, 1993, p. 195. Skinner, Q., 'Two concepts of citizenship', TijdschrFilosof, vol. 55, no. 3, Summer, 1993. Smith, A. D., 'National identity and the idea of European unity', International Affairs, vol. 68, no. 1, January 1992. Stephen, Sir Ninian, 'Our demotic Constitution', Australian Law Journal, vol. 68, October 1994. Stiavetti, R. and Parrella, B., 'A square in Rome', Internet, October 1994. Sypnowich, C. A., 'Some disquiet about "Difference"', Praxis International, vol. 13, no. 2, July 1993. Tamas, G. M., 'Old enemies and new: a philosophical postscript to nationalism', Studies in Eastern European Thought, vol. 46, nos 1-2, June 1994. Tamir, Y., 'United we stand? The educational implications of the politics of difference', Studies in Philosophy and Education, vol. 12, no. 1, 1993. Teasdale, A., 'Subsidiarity in post-Maastricht Europe', Political Quarterly, vol. LXIV, April/June 1993. Ten, C. L., 'Multiculturalism and the value of diversity', Australian and New Zealand Journal of Sociology, February 1995. Townley, A., 'Immigration in a changing world', address to the Australian Citizenship Convention, Canberra, 1957. Turner, B., 'Outline of a theory of citizenship', Sociology, vol. XXTV, no. 2, May 1990, p. 19. van Steenbergen, B., 'Scenarios for Europe in the 1990s: the role of citizenship and participation', Futures, vol. 22, November 1990. Vasta, E., 'Multiculturalism and ethnic identity: the relation between racism and resistance', Australian and New Zealand Journal of Sociology, February 1995. Walker, K., 'Treaties and the internationalisation of Australian law', Conference on the Mason Court and Beyond, Regent Hotel, Melbourne, 8 to 10 September 1995. Ward, A., 'Statesmanship and citizenship in Plato's Protagoras', Journal of Value Inquiry, October 1991. Watts, R., 'Rethinking the employment/citizenship link', Political Expressions, vol. 1, 1995. Whelan, F., 'Citizenship and the right to leave', American Political Science Review, vol. LXXV, 1961. White, P., 'Decency and education for citizenship \ Journal of Moral Education, vol. 21, no. 3, 1992. Whitlam, E. G., 'The issues: health, housing, education', in Australian Citizen Convention Digest, 1970. Williams, D., 'European and U.S. perspectives on civic republicanism', Global Legal Studies Journal, vol. 2, issue 1, Fall, 1994 (Internet http://www.law. indiana.edu/glsj/vol2/tocv2il .html). Willms, B., 'Politics as politics: Carl Schmitt's Concept of the Political and the tra-
SELECT BIBLIOGRAPHY
329
dition of European political thought', Journal of the History of European Ideas, vol. XVIII, 1995. Wringe, C , 'The ambiguities of education for active citizenship', Journal of Philosophy Education, vol. 26, no. 1, 1992. Yuval-Davis, N., 'The citizenship debate: women, ethnic processes and the state', (part of a special issue on Shifting territories: feminism and Europe), Feminist Review, vol. 39, Winter/Autumn, 1991. Zaretsky, E., 'Identity theory, identity politics: the separation betweem the public and the private', in P.James (ed.), Critical Politics (Arena, Department of Politics, Monash University, Clayton, 1994). Cases Adelaide Company of Jehovah s Witnesses v. Commonwealth, (1943) 67 CLR 116 AG (Commonwealth) ex relat McKinlayv. The Commonwealth, (1975) 135 CLR 1 Airlines of New South Wales Pty Ltd v. State of New South Wales, (] 965) 113 CLR 84 Ansett Transport Industries (operations) Pty Ltd and others v. Australian Federation of Air Pilots, (1991) 1VR 637 Australasian Meat Industry Employees' Union and others v. Mudginberri Station Pty Ltd, (1986) 161 CLR 98 Australian Capital Television v. Commonwealth, (1992) 177 CLR 106 Australian Communist Party v. Commonwealth, (1951) 83 CLR 1 Baker \. Carr, (1962) 396 US 186 [7L 2nd ed, 663] BistHdcv. Rokov, (1976) 11 ALR 129 Bolandy. Hughes, (1988) 83 ALR 673 Building Construction Employees and Builders Labourers Federation of New South Wales v. Minister for Industrial Relations and anor, (1986) 7 NSWLR 372 Burke v. State of Western Australia, 1982 W.A. Reports 248 Burns v. Ransley, (1949) 79 CLR 101 Calvin's Case, (1608) 7 Co Rep. 2a, 77 ER 379 Cokgrovev. Green, (1946) 328 US 540 [90 L ed, 432] Davies and Jones v. State of Western Australia, (1904) 2 CLR 29 Dietrich v. R, (1992) 109 ALR 385 Dollar Sweets Pty Ltd v. Federated Confectioners Association of Australia and Others, (1986) VR 383 DPP\. Smith, (Appeal Division) (1991) 1 VR 63 Drake v. Minister for Immigration and Ethnic Affairs, (1 and 2) 1979 1 Australian Law Digest 60; 2 Australian Law Digest 634: ExparteLau You Fat, (1888) 9 NSWR 269 Exparte Walsh; re Yates, (1925) 37 CLR 32 Gatwick v.Johnson, (1945) 70 CLR I Hortav. The Commonwealth, (1994) 68 ALJR 620 James v. Commonwealth, (1936) 55 CLR 1 Kilpatnckv. Kreisler, (1969) 394 US 526 Kioav. West, (1985) 159 CLR 550 Koowartav. Bjelke-Petersen, (1982) ALJR 625 Krygierv. Williams, (1912) 15 CLR 366 Loukasv. Young, (1968) 3 NSWLR 549 McArthurv. Queensland, (1920) 28 CLR 530 McHugh v. Robertson, Benn v Syme, (1885) 40 VLR 412 Minister for Immigration and Ethnic Affairs \. Pochi, (1981) ALJR 706 Minister for Immigration and Ethnic Affairs v•. TangJiaXin, (1994) 69 ALJR 8
330
SELECT BIBLIOGRAPHY
Minister for Immigration and Ethnic Affairs v. Teoh, (1995) 69 ALJR 423 Moffav. Regina, (1977) 13 ALR 225 Nationwide Newsy. Willis, (1992) ALJR 658 New South Wales v. Commonwealth, (1975) 135 CLR 337 Politesv. Commonwealth (1945) 70 CLR 60 PortugalY. Australia, ICJ (General List no. 84, 30 June 1995) Rv. Burgess; ex parte Henry, (1936) 55 CLR 608 R\. CongoMurrell, (1836) 1 Legge 72 Rv. Richards, ex parte Fitzpatrick and Browne, (1954) 92 CLR 157 Rv. Sharkey, (1949) 79 CLR 121 re Wood, (1988) 167 CLR 145 Ruling of 31 October 1990, AZ 2BVF 3/89 Salemiv. McKellar (no.2), (1977) 137 CLR 396; (1977) 14 ALR 1 Sykesv. Chary, (1992) 66 ALJR 577 Tasmanian Dams Case, (1983) 158 CLR 1 Theophanousv. Herald & Weekly Times Ltd, (1994) 68 ALJR 713 van Gend and Loos, 26/62 ECJR 1963 Wesberryv. Sanders, (1964) 376 US 1 [11 L ed 2nd, 481] Whites. Weiser, (1973) 412 US 783 Newspapers and Press Release Australian Financial Review Canberra Times Courier Mail Digest of The Australian Citizenship Convention, Canberra Giustizia e libertd Global Times II Globo Integration III L 'Expansion Le Courier australien La Fiamma Neos Kosmos Nhan Quyen Nuovo Paese Sydney Morning Herald The Age The Australian The Candle, 18 December 1994-January 1995 The European Tivi Tuan San Bolkus, N., Minister for Immigration, v The ties that bind', press release, 4 September 1995.
Index
Aboriginal Advancement League 207 Aboriginal Progressive Association (Australian) 191 Aborigines Aborigines Claim Citizenship Rights
{The) (pamphlet) 192 assimilation 193 atrocities 191, 193, 194 in Australian Constitution 52 citizenship contribution 213 difficulty of attaining 193 discrimination 188-9 electoral legislation 190 exclusion from 'national family' 203-9 and franchise 190 land 201-3 legal hurdles 194, 206-7, 210 softening of ethnocentrism 212 compared with aliens 161, 189-90, 203-9 and defects of Constitution 115 genocide of 86 housing 182 legal equality 253 living conditions 194 parliamentary representation 192 strikes 194, 210 'vanishing' 77 absolutist states 18, 32-3 and Hobbes, T. 33, 33 and minorities 33 monarchies vs interest groups 32-3 and nation-state 35 shift to parliamentary government 32, 34
Administrative Appeals Tribunal appeals by aliens 163, 164, 165 airline pilots union Hawke government smashes 131-2 aliens see also immigration; migrants; refugees Aborigines as 161, 189-90, 203-9 Administrative Appeals Tribunal 163, 164, 165 Aliens Act 161 boat people 158, 165, 166, 167 Communists 162-3 171 deportation powers 162, 163-4, 166 discriminatory legislation 92-3 Dunera boys 161 Pochi case 164 political activities 163-4, 166 and racial attitudes 160-1 Salemi case 163-4 and Whitlam government 162, 163 ALP see Australian Labor Party Anglo-Celtic ALP-Celtic re-read 145-6, 167 and Asia 212 in Australian community 10 Australian national identity 144, 153 and Australian self-definition 46, 50 demands of Aborigines 188-9 ethnocentrism 209 and Federation 49 hegemony fails 87 Kelly, Ned 49, 50 and Menzies, R. G. 99 as social paradigm 114 split society 94 state-inspired hybrid 251 Whitlam challenge 145 331
332
INDEX
Anglo-Saxon see also Anglo-Celts ethnic press scepticism 168 mind-set 2, 3 models of citizenship 3 traditions 168 apartheid and citizenship 4 APEC 186 and human rights 282, 283-4 Arbitration Court and Harvester judgment 66 industrial disputes 65-6 origins 56 and wage justice 66 Arbitration Commission see Arbitration Court Arena, Franca 117 Aristotle 217 definition of state 47 family model of citizenship 15, 19 and Italian city-states 17-18 and nature of citizenship 15, 16, 26 ASEAN 186 Asia-Pacific Economic Co-operation 219 assimilation of immigrants 122 and Aborigines 193 Athens see Greece atrocities against Aborigines 191, 193, 194 Australian government system European Union as paradigm 280-5 human rights in region 282, 283—4 democratic forms 280-2, 285 migration 281 regional supra-state economy 282 Australian Aboriginal Progressive Association 191 Australian Institute for Public Administration see also Bland, F. A. and centralised government 77 Journal of Public Administration 78, 94,
109, 235 and social safety net 78 Australian Labor Party see also Hawke; Keating; Whitlam ALP-Celtic re-reading 145-6, 167 anti-British leadership 140-1 influence of Manning Clark 141
Banggaiyerri 197-8 Barton, Edmund 225 Barwick, Sir Garfield 128, 164 on votes of equal value 229-30, 233
bill of rights 101 defeated at 1988 referendum 253 and defects of common law 126-7 failure at referendum 127 and Gareth Evans 124-5 George Venturini on 177-8 Justice (Michael) Kirby 126 Lionel Murphy 124 Sir Anthony Mason favours 131 planned content 124-5 reform of Constitution 126 Blainey, Professor Geoffrey 117 and Bulletin 168
and citizenship 138, 139 conservatives endorse views 168 and English language 138 John Howard on 171 Blair, Harold 193 Bland, F. A. 109-10 and centralised government 77-8 on colonial Australia 47-8 on compulsory voting 245 on federal system 249 and local government 235 blood ties 70 Board, Peter citizen and state 75-6 boat people 158 and deportation 166 Gareth Evans on 282 treatment of 165, 167 Bobbio, Norberto 282 and citizen in democracy 30 education of citizen 30 on participatory government 30 Boldrewood, Rolf 55 Bosi, Pino 87 Bowen, Lionel 125 Braddon, Sir Russell 76 Braudel, Fernand and pre-modern state 261 Brennan, Sir Frank 128, 130-1 Bridge, Ernie 198 British Australians as British subjects 45-6 end of Britishness 89 heritage n292 Bryce, James and civic virtue 73-4 on compulsory voting 245 Builders'Labourers case 126, 128
Burdeu, Arthur 192
Burke v. State of Western Australia 229, 231
Butler, Eric 109
Cairns, Dr Jim 163 Calwell, Arthur 91, 101, 173
INDEX Casey, R. G. [Lord] 169-70 census see population count central government decentralised powers 25 role 24-5 Chaffey Baker, Sir Richard 224 Chinese students (Tian An Mien) 158 Christesen, Clem Aborigines' living conditions 194 citizen rights, Australia and minority races 67 Naturalisation Bill 1902-3 66 women and aliens 67 citizen-initiated legislation 218 citizenship see also franchise; naturalisation; suffrage; vote Aborigines 188-9, 190, 193, 194, 203-9, 206-7, 210,212,213,253 Al Grassby on 104-5 allegiance 66-7 of Australia or Great Britain? 46, 67-8 Australians as subjects 248 Bland, F. A. on colonial Australia 47-8 Board, P. on citizen and state 75-6 Braddon, Sir Russell on citizen-warrior 76 and British inheritance 66-70, 71, 77 Bryce, J. on civic virtue 73-4, 76 categories 3 and colonial Australia 47, 48 and Constitution 249 criteria 46 definitions 4, 40-4 democratic role 254, 255 denization 59-60 Department of Immigration on 173 and economic survival 182 England 41-2 English language requirement 121 equal rights 254 equality through vote 217 in European Union 267-8, 269, 270, 274, 275 European notion of 3 and exclusion from 5 France 41, 43-4 and free trade 262-3 Germany 40-1, 42 and immigration in Australia 2 and immigration laws 150, 151 inclusiveness of 252 ius sanguinis 41, 43 ius soli 59, 61 Keating symbols 141 Lo Fiamma on 172 legal-political sense 3
333
limitations in Australia 145 Macphee, Ian 120-1, 123 and minority national groups 67, 70-72 and multiculturalism 136 Murdoch, Walter, and role of citizen 74 and nation-state 4, 10 naturalisation of non-Australians 59-62, 64-5 Naturalisation Bill 1902-3 66 NESB groups 252 and 'new nationalism' 167 and northern European background 71 and oath of allegiance 113, 118, 119 obligations 248 participation in political life 114-15 and referendum 1988 249, 250 and republic 258-9 and right to vote 10 and 1793 Constitution of France 59 social, economic benchmarks 183-5 supranational institutions 4 territoriality 3 Theophanous, Dr Andrew 121-2, 123 and ties of blood 70 women and aliens 67 won against state 254-5 Citizenship Conventions 169-71 assimilationist trend 170 civics training for citizens 135, 141 in schools 79-83, 134, 136 civil rights debate on 108-12 Clark, C. M. H. (Manning) anti-British attitudes 141 influence on R. J. Hawke, Paul Keating 141 Cockburn, John 225, 226 colonial Australia and Aborigines 189-90 Bland, F. A. on 47-8 despotic nature of 47, 55 common law, in Australia rule by courts 57—8 Communist Party 171 and aliens 162, 163 attempt to ban 96, 109 Latham, Sir John on 96, 98 members jailed 95 Royal (Petrov) Commission into 96 Sharkey, Lance 96 supports Aborigines 192, 194 threat to national security 94—5 and Whitlam government 162 compulsory voting 132 reasons for introduction 245
334
INDEX
Constant, Benjamin 218 citizen as individualist 26-7 and citizen self-interest 25 'Liberty among the Ancients compared with that of the Moderns' 19, 20-1, 22 and representative democracy 22, 23 representative government 20, 22-3, 28 Constitution of Australia and Aborigines 56-7 and bill of rights 11, 83 compare Constitution of French Republic, 1791 51 and citizenship 60-1 Constitutional Commission (1988) 133 and conventions 242 defects 84-5, 100-1, 109-10, 115, 223, 233, 241 'excitable' masses 244 and Governor-General 241-2, 244 industrial disputes 56 limitations enshrined in 50-2, 83 myth of democratic creation 141-2 and people 52-4 public understanding of 133 referendums for change 115 responsible government 240-1 Section 6/61; 51/56, 60, 102; 92/51, 62, 63, 65, 93; 34/60; 117/62, 63 Senate powers 241, 242, 244 shortcomings 83 and Westminster system 240, 241 Constitutional Commission (1988) 133 Constitutional Conventions 223 aims 223, 224, 225, 226 and equality of vote 225, 226 constitutions central vs local powers 24-5 of France (1791, 1793) 59, 217, 254 of Italy 178 of Solon 15 European, post-World War II 25 of French Revolution 30 and rule of law 15-16 Cooper, William 191,207 Coranderrk reserve 191 Council for Civil Liberties 95 Court of Conciliation and Arbitration see Arbitration Court courts of law dominate weak legislatures 57-8 and languages other than English 123 and mores other than Anglo-Celtic 123 cultural diversity see multicultural Deakin, Alfred 75, 224 decentralised power 218
democracy and citizenship 3, 7, 10 right to vote 10 rights in European Union 264, 268, 269, 270,271 democratic participation see participatory government denization 60 Department of Immigration 87, 91, 150 Calwell, Arthur 91 on citizenship 173 composition of 91 Heyes, Tasman 91 powers of officials 160, 163-4, 165 DIEA see Department of Immigration Dietrich case 129
DILGEA see Department of Immigration DIMA see Department of Immigration direct democracy California experience 240 citizen-initiated legislation 218, 239 difficulty of electoral reform 238-9 electronic town hall 219, 220 networks and vote 220 politics of in Australia 239-40 Reith, Peter 239-40 Swiss model 218 and technology for 219, 238 discrimination against Aborigines 188-9 ALP and Aborigines 199-200 migrants and points system 180 pseudo-biology 207, 208 Downer, [Sir] John 225, 226 Downer, Alexander 239, 240 Drake case 164 dual citizenship 90, 137-8, 139, 172 and Constitution 139 Dunera boys 161 East Timor Gareth Evans on 282 economic rationalism effects on migrants 180, 185 and multiculturalism 185 economic outlook and effects on democracy 246-7 economy of Australia and Asian trade 116 need to restructure 116 Eggleston, Frederick 109-10 Elkin, Professor A. P. 192, 193, 207, 208 English language Blainey, Geoffrey 138 and citizenship 121 Macphee, Ian 120-1, 123
INDEX Theophanous, Dr Andrew 121-2, 123 training 174, 180, 181 ethnic press 171-2, 180 see also individual newspapers ethnic broadcasting 122 Eureka Stockade 55 European Union 219 and Australia (as model) 280-5 aims 268-70 citizenship 267-8, 269, 270, 274, 275 democratic rights 264, 268, 269, 270, 271 elections 272 equal value vote 275 evolution of government 263-6 immigration 266-8 and market place 266 malapportioned Parliament 275 model federation 263-75 multiple loyalties 266 and nation-state 263-4 national differences 272-3 ombudsman 272 Parliament 272, 274 referendums 275 regional power 265 representative democracy 276-80 Swiss model 265, 266 Evans Gareth 236 and bill of rights 124-5 on East Timorese 282 on Governor-General 241 Evatt, Dr Herbert Vere 97 family Aristotle's views 16 and citizenship 4, 16 Federal Council of Aboriginal and Torres Strait Islanders 195 Federal Council for Aboriginal Advancement 195 federation Australia 47, 48 Swiss model 265, 266 Ferguson, Jack 191, 192 FILEF 164 FitzGerald Report (1988) on naturalisation and citizenship 138, 140 Fitzpatrick, Brian 141 and Council for Civil Liberties 95 on threats to citizen rights 95 franchise see also citizenship; suffrage; vote Aborigines denied 190-1, 195-6, 197, 207 exemptions and Aborigines 196 and Kimberley election (1977) 198
335
free trade citizenship 262-3 and economic growth 261 and migrating workers 262 nation-state superseded 261 regional groupings 261, 262 Free Speech case 129-30 and Andrew Theophanous appeal 130 Galligan, Brian 244 Gaudron, Justice (Mary) 129-30 Gellner, Ernest 35 gerrymander in Australia 221-2, 226, 228, 233-5 Gini index/234 Dauer-Kelsay index /235 international conventions 233 technology overcomes 219, 238 Whitlam on 227, 228 Gibbs, Sir Harry 128, 230 international conventions 128-9, w296 Gibbs, Pearl 191 Good Neighbour Council 1, 92, 169 Gramsci, Antonio 30 Grassby,Al 100, 104-5 Greece agora 16, 218 citizenship of 17, 36 and citizen-warrior 76 and democratic rights 11 direct democracy 218 duties of citizen 36, n290 model of civic virtue 27 organic community values 26 relevance to modern society 14, 18, 19 and right to citizenship 4, 5, 13-14 Rousseau on 26, 27, 36 Grey, Sir George 225, 226 Griffith, Sir Samuel 224 Hammond, Ruby 208 Harold Holt 104 Harvestercase 58, 66, 180, 253 Hawke government and airline pilots union 131-2 condemned by ILO 131 human rights record n296 and judicial activism 131 Held, David 2 definition of citizenship 31-2 Heyes, Tasman 91, 92 Higgins, H. B. 65, 66 High Court of Australia see also individual justices and ALP government 128, 131 expands citizens' rights 131-2 and international conventions 128-9
336
INDEX
High Court of Australia (cont'd) and international precedents 130 judicial activism 128, 129, 131, 132 and lack of bill of rights 128 State governments 128 treaties bind Australian legislatures 102 and United States judgments 231 Hobbes, Thomas and absolutism 33-4 Home, Donald 241-2 Howard, John views on Geoffrey Blainey 171 Hoy, Alice civics in schools 79-83, n293 Hughes, Professor Colin 238 human rights myth of Australian achievements 141 Humboldt, Wilhelm von 39 // Globo 168, 171 immigration see also aliens; citizenship; Department of Immigration; migrants; naturalisation; refugees Australia and changed policy 86-8 boat people 158 changed nature 153, 158 Chinese students (Tian An Mien) 158 and citizenship in Australia 2, 88-9, 91-2, 150, 151 effect of mass migration to Australia 85 in European Union 266-8 and Grassby, Al 104-5 and international conventions 151—2, 158-60 labour migration 85 laws \bOff Nationality and Citizenship Act (Australia) 88-9, 91-2 and NSW parliamentary report 113 open frontiers 153—4 reasons for migration 85 refugees 158 Immigration Department see Department of Immigration Industrial Relations Commission see Arbitration Court Institute for Public Administration see Australian Institute for Public Administration international conventions, treaties and Aborigines 200 bind Australian legislatures 102 and defects of voting system 233 and economic rights 183 and rights of immigrants 151-2, 158-60 and social rights 183
international trade with Asia 116 Italians and Australian citizenship 168, 172 economic security 170 newspapers 168 ius sanguinis 41, 43, 82, 265, 270 ius soli 59, 61, 87, 143, 150, 164, 204 and Aborigines 189, 207 Jacobs, Justice 230 James case 63 Jayasuriya, L. 185 Jefferson, Thomas on nation-state 39 Jindyworobaks 192 Jordens, A-M. 145 changed immigration policy 88 and multi-ethnic citizen 92 on naturalisation 105 Journal of Public Administration 94, 109, 235 Jupp, (James) 185 Kant, Immanuel and citizen's duties 27 and social justice 26 Keating, Paul 136, 214-15 anti-British line 140-1 influence of Manning Clark 141 influence of S. Macintyre 141 National Immigration Outlook Conference speech 140 on republic in Australia 258 on trade and jobs 153 Vision for the Future 280-1 and Watson, Don 141 Kelly, Ned 49, 50, 57 Kimberley election (1977) 198 Kirby, Qustice) Michael 117, 126, 128, 141 on constitutional monarchy 259 Kisch case 64, 65 Koon WingLau\. Calwelll72 Koowartav. Bjelke-Petersen 201 Kukathas, Chandran 257 labour market internationalisation of 115 recession (1982) and unemployment 116 LaFiamma 171 on Italians and citizenship 172 land and Aborigines 201-3 see also Aborigines Koowartav. Bjelke-Petersen 201 and limitations of law 201 Mabo case 202, 203 Native Titles Act (1994) 202
INDEX Teoh case 202 Tooheyv. Northern Territory 201
Lane William 56 language training see English language training Latham, Sir John 96, 98 Lawson, Henry 53 League of Rights 109 Le courier australien 171
Liberal Government 108-9 liberty and commercial freedom 21 local government Bland, F. A. on 235, 236 defects in Australia 236-7 evolution in Australia 235-7 Labor policy 236 Locke, John and accountability of ruler 34 Mabo case 202, 203, 254 see also land McArthur's case 63 McGinty case 253 Mclnnis case 129 Macintyre, Professor Stuart 141, 142 influence on Paul Keating 141 MacKellar (Michael) 163 McKinlay case 228, 229, 230, 233 Macklin, Senator M. J. 238 Macphee, Ian and citizenship 120 and English language requirement 121, 123 McLeod, Don 210 McTiernan, Justice 230 malapportionment see gerrymander Manacorda, Paola on networks and vote 220 Marshall, T. H. 2 and economic equality 31 Martin, Sir James on courts and people 58-9 Mason, Sir Anthony 128, 130 and bill of rights 131 Menzies, Sir Robert and Anglo-Celtic identity 99 attempts to ban Communist Party 96, 109 on common law 97 individual liberties 98 and jingoism 108 Middleton, H. 195 migrants see also aliens; citizenship; Department of Immigration; immigration; naturalisation; refugees
337
compare Aborigines' disadvantages 179 aspirations 1 assimilationist years 169-71 and Australia's population 10 boat people 158 British background 70, 71 changed nature of 89 Chinese students (Tian An Mien) 158 discrimination of points system 180 distaste for Anglo mores 171-2 elderly 181 and Grassby, Al 104-5 millionth (English) 89 minority national groups 70-72 and northern European background 71 post-war attitude to 72 refugees 85, 93 social equity for 180 two-millionth (Asian) 89 and unemployment 180 UNRRA93 Whitlam reforms 180 World War II aliens 71 Mill, John Stuart 25 and rights of minorities 35 on representative government 28 Miller, Pat 197 Minister for Immigration see individual entries minorities see also multicultural minorities, in Australia Aborigines 49, 56-7 and citizen rights 67 and Constitution 52 ethnic minorities 57, 67, 71 Irish Catholics 49, 57 Kelly, Ned and 49, 50, 57 and World War II aliens 71 Monnet, Jean 266 multi-ethnic population 5, 6 see also multicultural conscription and French language 36 English and Scots 33, 35 in Europe 281 multicultural society 2-3, 11 Australia 85, 87 destruction of minority cultures 35 minorities in modern state 28 and nation-state 33, 35, 36, 37, 38, precursor of globalisation 87 Rousseau on minorities 26, 37 multiculturalism 167 and citizenship 136 and conservatives 113 and economic rationalism 185 ethnic broadcasting 122 interpreter services 123
338
INDEX
multiculturalism (cont'd) and 'new nationalism' 185 replaces national identity 252 replaces assimilation 122 Murdoch, Rupert and citizenship 137 Murdoch, Walter and role of citizen 74 Murphy Lionel 127, 177 and bill of rights 124, 125 on Statute of Westminster 102 and Trade Practices Commission 175, 176 on votes of equal value 230 Murray Island see also Mabo
strikes (1937) 194 Namatjira, Albert 194 nation-state as alternative to absolutism 35 cohesion of 117 decentralised powers 25 development of Australia as 47 division of Europe to end 40 end of sovereignty 262 European Union 263-4 evolution of 18-19, 32-40 failure in economic terms 260-1 and free trade 261 and Humboldt, W. von 39 and Jefferson, T. 39 middle class concept of 37-8 and minorities 33, 35, 37, 38 national family (Australian) see also Anglo-Celtic; national identity; nationalism Aboriginals excluded 203-9 blood ties 204, 205 contribution to community 213 denned 204 exclusiveness 146-7, 150 legal impediments 194, 206-7, 210 nationalism revives 145-6, 147 racial exclusiveness 150 national identity see also Anglo-Celtic; national family; nationalism Anglo-Celtic hybrid 251 and institutional heritage 257 migrants entitled to change 257 multiculturalism replaces 252 non-English-speaking background groups 252 symbols lacking 252 nationalism ALP-Celtic re-reading 145-6
Australian 69-70, 117-18 Bolkus, Nick on 256 Hawke-Keating 'new' 167, 173, 185, 203 jingoistic 108 Keating on 256 and Mabo 203 origins 69 and religious tension 82 nationality Australian criteria (1983) 118 dual 90, 137-8, 139, 172 oath of allegiance 118 Nationality and Citizenship Act (Australia) 88-9,91-2; (1948) 149 nationhood, Australian Anglo-Celtic 101 loyalty and Queen Elizabeth 103 sense of 101 Statute of Westminster 101 naturalisation British reluctance 106 ceremonies 103 compulsory 104 demand for 93 and Italian reluctance 106 of non-Australian citizens 59-62, 64-5 oath of allegiance 105-6 requirements 91-2 and World War II aliens 71 Neos Kosmos 171
NESB see non-English-speaking background Nhan Quyen 168, 171
Nichols, (Pastor) Doug Aborigines' living conditions 194 trust in Menzies intentions 193 non-English-speaking background 153, 252 Noonuccal, Oodjaroo 211, 214 North American Free Trade Area 219 Northern Territory Council of Aboriginal Rights 195 Nuovo Paese 164, 172-3, oath of allegiance 113, 189 amended (1986) 118, (1994) 119 bipartisan support 118, 119 debate 118-19 God optional 119 and naturalisation rates 105-6 quoted 119 Parkes, Henry 54, 223 and Constitution 56 and working class 54 and transportation 54
INDEX parliamentary government poverty and effects on democracy 246-7 representation of Aborigines 192 and single issue movements 245 participatory government agora 16 Bobbio, N. on 30 and Constant, B. 22 direct democratic 19 and economic equality 30-1, 32 education of citizen 30 and evolution of representative government 20 and Gramsci, A. 30 in Greece 19 Kant, I. 29 Rousseau, J. J. 29-30 Partridge, Perce 109 Pochi (Luigi) 164 politics and citizen 19, 20, 21-2 population count Aborigines left out 190 Prasad case 166 racism 11 see also family background; multicultural Anglo-Celtic ethnocentrism 209, 211 in Australia 86 causes 86 and citizenship 4 and economic debate 117 and economic rationalism 185-6 multicultural Australia 117 and multiculturalism 185 'new nationalism' 185 and reform of institutions 117 and Whitlam government 86-7 Rawls, John 2 recession (1982) 116 referendums in European Union 275 failure to pass 244, 245, 249, t250 and people 115 refugees 158 see also aliens; immigration; migrants boat people 158, 165, 166, 167 Chinese students (Tian An Mien) 158 Dunera boys 161 from Fascism 160-1 from Fiji 166 deportation see aliens Reith, Peter 239-40 Renan, Ernest 'Qu'est-ce qu'une nation?' 19 representative government and Benjamin Constant on 22-3
339
and binding mandate 218 British philosophers 28 decentralised power 218 and democracy 218 evolution of 20, 23, 27-8 in European Union 276-80 referendums 218 vote as symbol of consensus 218 republic in Australia and British hegemony 50 constitutional changes necessary 258-9 Keating on 256 Kirby, M. on 259 responsible government and Constitution of Australia 240-1 and dismissal of Whitlam government 241 'excitable' masses 244 and Governor-General 241-2, 244 and Senate powers 241, 242, 244 Westminster system 240, 241 restructuring Australian economy and Asian trade 116 need recognised 116 Ridge, Alan 198 right to strike ALP government smashes pilots union 131-2 Victorian Supreme Court 132 rights in Australia, 1788-1855 144 Robtelmesv. Brenan 160 Rousseau, IJean-Jacques] 218, 223 and citizen's duties 27, 35 ethnic minorities 26 and Greek model 19-20, 26, 36 and nation-state 9 and participatory government 29-30 and social contract theory 34 social justice 26 on suffrage 48 Salemi, Ignazio 163-4; case 132 Salvaris, M. 183, 184 Special Broadcasting Service see ethnic broadcasting; SBS SBS cost-cutting 181 Schmitt, Carl and social conflict 39, n291 Schuman, Robert 263 Sharkey, Lance 96 Simon, Ella 196-7 single issue movements 245 Snedden, Billy 106 social movements see single issue movements
340
INDEX
South Africa and citizenship under apartheid 4 Spinelli, Altiero 263, 264 and nation-states of Europe 40 Statute of Westminster 102 Stephen, Sir Nmian 142 on votes of equal value 230 Stephensen, P. R. 69, 192 strikes by Aboriginals McLeod, Don organises 210 Murray Island (1937) 194 Western Australia (1945) 194 subsidiarity 236 suffrage see also citizenship; franchise; vote adult male 144 in colonial Australia 48 and Constitutional Conventions 223, 224, 225 gerrymander 221-2, 226, 228, 233-5 Swiss federation 218 as multi-ethnic model 219 model of direct democracy 240, 264 Tate, Frank and civics training in schools 79 Ten, C. L. 257 Teohcase 131,202 terra nuUius 189, 203 Theophanous, Dr Andrew 121-2, 123 and libel case 130 and social reform 178-9 Tivi Tuan San 171 Toohey v. Northern Territory 201
Totaro, Paolo 114-15, 175 Townley, A. G. (Athol) on assimilation 169 TPC see Trade Practices Commission trade see international trade Trade Practices Commission 175, 176, 177 Trang Thomas, Professor 168 transportation, of convicts 54 Turnbull, Malcolm 141 Turner, Bryan 2 United States courts and equal vote 231-2, 233 and relevance of judgments 231 UNRRA (United Nations Refugee and Rehabilitation Agency) 93 Venturini, George advocates Italian constitutional model 115 on big business 176 bill of rights 177-8 on common law precedents 176
and North American practice 115 and Trade Practices Commission 175, 176, 177 Vietnamese cultural traditions 175 economic situation 174 family migration 174 family values 168 trade 174 vote see also citizenship; franchise; suffrage and binding mandate 218 comparative value of 10 compulsory 73 considerations guiding 15 Dauer-Kelsay index /235 defects of Constitutional Conventions 223, 224, 225, 226 equal value 80, 221, 225, 226, 228, 229-30, 238-9 exercise of 15 Gini index f234 McKinlay case 228, 229, 230 symbol of consensus 218 US courts and equal vote 231-3 Whitlam and malapportionment 227, 228 Walker, Professor Geoffrey de Q. 238 Walsh case 105,64-5 Walzer, Michael 257-8 Watson, Don 141 Wentworth, W. C. 54 West, Stewart 118 White Australia Policy 86, 87, 150 Whitlam, government 11, 115, 283 see also Australian Labor Party and aliens 162, 163 ceases commitment to Anglo-Celtic identity 99-100 changes to popular opinion wrought by 103 and defects of Constitution 100-1, 109 dismissal 103, 132 hostile to decentralisation 236 international conventions and Aborigines 200-1 loyalty and Queen Elizabeth 103 on malapportionment 227, 228 perceptions of Aborigines 201 and race issue 86-7 racism in ALP 199-200 wants bill of Rights 100-1 Wilson Woodrow on duties of citizen 37 women in Australia 48
INDEX enhanced role 94 and rights to marry aliens 67 working class and Lawson, Henry 54 and Parkes, Henry 54 as representing the people 54, 58 and transportation 54 and Wentworth, W. C. 54 World War II and centralised government 77
341
and immigration 71 treatment of aliens 71 Yeatman, Anna 2 Young, I. M. 2 Zangalis, George 162 Zubrzycki, Jerzy 136 and amendments to oath of allegiance 118
