The History of Australian Citizenship: It Wouldn’t Have Happened in 1901

The current constitutional citizenship crisis has shown how complex are questions of belonging in a multicultural country. The parliamentarians whose eligibility to sit in the parliament has been questioned have each been caught out by a legalistic conception of citizenship — citizenship as a yes or no proposition determined by the law. None has claimed any allegiance to a foreign country, nor sought to benefit from that country. But each appeared to be, in fact and law, a citizen of another country. The High Court found that neither Senator Canavan nor Senator Xenophon were, in fact, dual citizens.

In 1901, when s 44 of the Constitution came into force, citizenship was not a legal status in any part of the British Empire. Rather, the Empire’s people were subjects of the British Crown and there was no legal distinction between an Australian and other British subject. Any subject who met a residency criterion was entitled to sit in the Commonwealth Parliament. Six of the senators who have been drawn into the controversy along with Barnaby Joyce and John Alexander would have been entitled to sit as legislators. Senator Canavan, had he been Italian, would alone have been ineligible. Citizenship became a legal status within the British Commonwealth in the 1940s, and the foreign status of other members of the Commonwealth was confirmed by the High Court in Sue v Hill (1999).

The argument made unsuccessfully in the recent High Court cases under s 44 – that the exclusion involves a mental element – reprises the concept of citizenship as relationship, not mere legal status, an understanding that was taught to school children after federation. Contemporaneous civics textbooks give us some insight into how citizenship was understood at the time s 44 was enacted.

Federation coincided with reforms of public education, led by New Liberal thinkers.  Following a speech in 1901 by Francis Anderson, professor of philosophy at the University of Sydney, who pointed to deficiencies in the NSW education system, the government appointed Royal Commissioners who carried out a study of school systems in Australia, fifteen European countries, the United States of America, and Canada. This Commission, and a similar one in Victoria, led to the inclusion of civics in primary school curricula that recognised: ‘It is important that, as the pupils reach an age when they can appreciate the rights of citizenship, they should also realise the duties which those rights involve’.

The concept of citizenship presented to Australian children, most influentially in the textbooks by Walter Murdoch (1912) and Alice Hoy (1917), was founded in New Liberalism. New Liberals believed in active citizenship within a society that fostered individual self-fulfilment. The state should ensure its citizens had positive freedoms – freedom to flourish – as well as the traditional liberal negative freedom not to be interfered with. But citizens were not to be mere recipients of freedom: they had a responsibility to engage with and improve their society.

A striking proposition of civics texts, which sits uneasily with the current exclusion of dual citizens, was that each person was concurrently a subject of the Crown, and a citizen of empire, nation, state and municipality, and derived rights from and owed duties to each. Federation did not create an independent Australia, and nor were Australian children encouraged to see themselves as citizens of an independent country.

The current interpretation of s 44 of the Constitution requiring a single legal citizenship operates on diametrically opposite premises. Now a person is a citizen if they meet the requirements of the Australian Citizenship Act 2007. In 1901, citizenship, as distinct from subjectship, depended on allegiance, and rights and abilities to participate in the political nation. It was, therefore, a status of degree. For some subjects full citizenship was not available. The varying degrees of citizenship were exposed in civics texts.

The representation of women in these texts suggests ambivalence. They are welcome to participate as citizens, but is their participation necessary for the success of democracy? Parliament is a male domain. Unlike men, women were not called on to defend their country. Perhaps they were full, but different – maternal – citizens.

Indigenous subjects of the Crown, denied the vote by the Franchise Act 1902, were simply ignored.  

Irish-Catholic subjects of the Head of the Church of England were also overlooked. The texts are not overtly sectarian but they are deeply liberal and have a Protestant flavour. Judith Brett observed that British liberalism, on which Australian liberalism drew, was concerned with ‘freedom to follow the religion of one’s conviction, and this meant dissenting Protestantism.’ Perhaps Catholics, with their split allegiance to monarch and pope, could not be full citizens.

White Australia, mainly concerned to exclude Chinese, was presented as a necessity. Marilyn Lake has argued that liberals could reconcile their belief in equality with this policy because the Chinese were seen as not equal in their ability to engage with democracy, and could be excluded. These exclusions were not seen as undermining equality: rather, they maintained it.

Citizenship is an elusive and malleable concept. Now women, members of any faith, Indigenous Australians and people of colour can have the legal status of citizen. The constitutional crisis and the representation of citizenship following federation highlight how Australia’s understanding of who is included and who is excluded by ‘citizenship’ has changed as we have moved from tentative nation- building to ‘mature’ democracy.

Citation: Andrew Dillon. The History of Australian Citizenship: It Wouldn’t Have Happened in 1901. Australian Policy and History. November 2017.