Conceptualising Australian citizenship for children: a human rights perspective.

• Author: Rubenstein, Kim
• Position: Creating New Futures for All: International Law and the Protection of Migrant Children at Risk

Abstract

Australia's first National Children's Commissioner was appointed in 2013. One of the Commissioner's key functions is to examine whether Commonwealth legislation recognises and protects the human rights of children in Australia. A fundamental starting point for this examination is Australia's citizenship law. Australian citizenship is governed by the Australian Citizenship Act 2007 (Cth) ('Act'). In this article, we highlight two key issues for the Commissioner in examining the Act.

First, citizenship is a concept that extends beyond the Act. While the Act confers citizenship as a legal status, children's citizenship can also be conceptualised as rights, political engagement and identity. These aspects are reflected by the United Nations Convention on the Rights of the Child ('Convention). Second, when examined in light of the Convention, the Act is deficient in the way it protects the human rights of children. The A slacks flexibility for decisionmakers to consider children's best interests and fails to protect their human rights of non-discrimination, participation and identity. These deficiencies form the basis of an argument for reform.

I Introduction

A significant step toward protecting the human rights of children in Australia was taken with the enactment of legislation to establish a National Children's Commissioner ('Commissioner'). On 28 June 2012, the Australian Human Rights Commission Amendment (National Children's Commissioner) Act 2012 (Cth) received royal assent and on 25 February 2013, Megan Mitchell was appointed the first Commissioner. One of the key functions conferred on the Commissioner is to examine existing and proposed Commonwealth enactments to ascertain whether they recognise and protect the human rights of children in Australia, and to report the findings to the Minister. (1) In performing these functions, the Commissioner must consider a range of international human rights instruments, including the United Nations' Convention on the Rights of the Child. (2)

This article argues that a fundamental starting point for any examination of a state's protection of human rights begins with conceptions of citizenship. The term 'citizenship' is used by scholars in different ways, (3) and in this paper we draw upon the insights of Linda Bosniak, who identifies the different frames in which citizenship plays out. (4) There are four key aspects that underpin contemporary understandings of citizenship and which are useful for our argument: citizenship as identity and membership, citizenship as rights, citizenship as political participation and citizenship as a legal status. (5) While these aspects were formulated in the context of a discussion of the meaning of adult citizenship, we argue that they have a special significance for children, a significance that is reflected by the Convention.

In its legal formulation, citizenship is a fundamental expression of membership and is a basis to claim certain rights in a nation state. In Australia, the Australian Citizenship Act 2007 (Cth) (Acf) governs an individual's entitlement to the legal status of citizen. Citizenship is the most secure form of membership of the Australian community when compared to permanent and temporary residence. It is also the most secure form of entitlement to Australia's human rights protections. Individuals in Australia who have the legal status of citizen have a right to remain in Australia and, accordingly, to security of indefinite protection of its laws and policies. (6)

In this context, we highlight two key issues for Mitchell in her role as the Commissioner. First, it is crucial the Commissioner is not tied to legal conceptions of citizenship based in the Act alone. The centrality of citizenship to membership of the Australian community and to security of human rights protections highlights that citizenship is more than a legal status. Returning to Bosniak's work, (7) when reviewing the extent to which the Act protects the human rights of children in Australia, it is crucial that the Commissioner is mindful of a broader conception of children's citizenship, encompassing membership, rights, and political participation, as well as the legal status conferred by the Act itself.

Second, an examination of the Act based on the Convention and in the context of this broader conception of citizenship highlights a deficiency in the extent to which Australia's citizenship law protects the human rights of all children in Australia. Too often the Act lacks the flexibility in practice to allow a consideration of children's best interests, (8) protect children's rights without discrimination, (9) foster their participation, (10) nurture their right to a nationality and an identity (11) and acknowledge the vulnerabilities of adopted children. (12) This creates a vulnerable class of children who, despite their connections with Australia by membership or political participation, are unable to attain the security of rights and legal status of an Australian citizen.

II The Act: Citizenship as a Legal Status

Citizenship in Australia is a statutory concept. (13) The Act governs the ways in which individuals, including children, may attain the legal status of Australian citizen. (14) While membership of the Australian community has existed as a legal concept since the time of Federation, legislation governing Australian citizenship was first enacted in 1948. (15) The enactment of the Act in 2007 reframed the structure of how one becomes a citizen. Children are particularly impacted by the Act in three key areas: automatic acquisition of citizenship, (16) obtaining citizenship by application (17) and the cessation of citizenship. (18)

A child may automatically acquire the legal status of an Australian citizen in one of three ways. If born in Australia, the child will automatically be an Australian citizen if one of the parents is a citizen or permanent resident, (19) or if not, if the child ordinarily resides in Australia for the first 10 years of his or her life. (20) A child adopted by an Australian citizen will also be a citizen if the child is a permanent resident and is adopted under a law in force in an Australian state or territory. (21) Finally, a child found abandoned in Australia is an Australian citizen, unless and until the contrary is proved. (22)

The Act also identifies ways of applying for citizenship. (23) A child may make an application for a grant of Australian citizenship by descent, (24) by conferral, (25) in circumstances of statelessness (26) or if adopted in accordance with the Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption. (27) The Minister must refuse an application for citizenship if the applicant does not satisfy the national security, (28) identity (29) and timing (30) requirements imposed by the Act. In addition, the Minister has a discretion to refuse an application for citizenship by conferral under s 21 (5) (31) or an application under s 19C by a child adopted overseas, (32) despite the applicant satisfying the eligibility criteria and other requirements.

Two of the Act's provisions concerning the cessation of Australian citizenship apply specifically to children. First, under s 25(4), where a child under the age of 16 makes an application for citizenship by conferral under s 21 of the Act at the same time as one or more of their parents, the approval of the child's application is conditional on the approval of their parents' application. (33) Second, if the parent of a child under the age of 18 ceases to be an Australian citizen because they have renounced their Australian citizenship, (34) had their citizenship revoked by the Minister, (35) or are serving in the armed forces of a country at war with Australia, (36) the Minister has a discretion also to revoke the child's Australian citizenship. (37)

This is therefore the legal starting point for thinking about citizenship, but we argue that the enquiry must extend beyond the legislation.

III The Convention: Supporting a Broader Conception of Children's Citizenship

The Act governs children's entitlement to citizenship as a legal status through the regulation of the acquisition, conferral and cessation of Australian citizenship. However, the significance of children's citizenship resonates beyond a legal classification based on legislatively prescribed requirements. Citizenship is the most secure form of legal membership of the Australian community and it is also critical for the security and stability of a child's rights in Australia. Further, citizenship is an important reflection of children's political engagement and identification with the Australian community. The Convention reflects these aspects, demonstrating their centrality both to the concept of citizenship and to children's rights more generally.

A The Significance of the Convention

The Convention is the most comprehensive statement of policy regarding children's interests and has a significant role in Australian law and policy. (38) While statements of international law must be specifically incorporated into Australian legislation to have legal status in

Australia (39) and no federal or state legislation has implemented the entire Convention, parts of the Convention are reflected in state and federal legislation. Significantly, when carrying out her functions under the Australian Human Rights Commission Act 1986 (Cth), the Commissioner is required to have regard to the Convention where appropriate. (40)

More broadly, the Convention informs the interpretation and application of all Australian legislation. 'Where a statute or subordinate legislation is ambiguous, the courts should favour that construction which accords with Australia's obligations under a treaty or international convention to which Australia is a party.' (41) The Australian government s ratification of the Convention gives rise to an international law...