NOOSA – To augment and provide some formal legal underpinnings for Stefan Armbruster’s fine article on the sad case of Troyrone (Troy) Zen Lee, I am publishing two extracts from longer commentaries by legal experts.
For those readers who wish to better understand the arguments involved, and the somewhat confusing (not to mention slender) basis on which Parliament’s sometimes make their laws, I believe these extracts will be useful as they advert to Lee's and other like cases.
They of course not explain or excuse the shocking treatment over a protracted period of five years that the Australian Department of Home Affairs meted out to Troy Lee.
That is a scandal of which every Australian who believes in fairness, due process and human rights should be absolutely ashamed.
As one commentator said to me, “They [Home Affairs] are just so out of control. Makes you wonder what Australian citizenship is actually worth, especially as an immigrant.”
To which I replied, “Unfortunately our country has taken a turn for the worst in the last 10 years in terms of human rights.”
“And that’s come from a very low baseline,” my correspondent rejoined.
To which I could only reply, “Yes, we never really got out of the basement.”
PETER PRINCE & EVE LESTER
We turn now to the continued stripping of Australian citizenship rights in the 21st century because of White Australia fears about an invasion of ‘dark pigmented’ Papuans.
Islands off Papua and New Guinea were also ‘blackbirded’ for labour for tropical Queensland in the colonial era.
After receiving reports in 1884 of the deaths on a Mackay plantation of scores of New Guinea Islanders, Premier Griffith instructed all Government Agents sailing from Queensland that “no Islanders were to be brought from New Ireland or New Britain, as the natives were totally unfit for the work, and only came to the colony to die” (Queensland Parliament, Official Record of the Debates of the Legislative Assembly, 4 March 1884).
Mr Cameron from Tasmania told federal Parliament in November 1901 that the racist policy behind the Immigration Restriction Act and the Pacific Island Labourers Act should also be used to keep the “coloured aliens” of Papua away from the mainland when it became Australian territory.
He supported expansion of Australia’s new Federation into the Pacific as part of its own ‘Monroe Doctrine’. But, he said, “there are 350,000 natives at present in New Guinea, and if they become part of the Commonwealth, how can we have a White Australia?”
The exclusion of Papuan Australians continued until they could be kept out as foreigners after Papua New Guinea’s Independence.
When Australian citizenship was formally created after World War II, Papuans (like Aboriginal Australians) were given a form of ‘pretend’ citizenship only.
Asked in 1948 if Papuans could travel to mainland Australia and enjoy the right to vote, Immigration Minister Arthur Calwell declared, “We do not even give them the right to come to Australia…a native of Papua would be an Australian citizen but would not be capable of exercising rights of citizenship”.
The determination throughout the White Australia era to keep dark skinned people away from the mainland meant Papuans lost their Australian citizenship in 1975.
Under regulations made by Governor-General Sir John Kerr, Australian nationality was removed from those who became citizens of Papua New Guinea on Independence Day.
Only the few Papuans granted permanent residence in Australia did not become Papua New Guinean citizens and kept their Australian citizenship.
When challenged in Ame’s case (2005), the High Court said Papuans never held ‘real’ Australian citizenship.
Federal Parliament had denied them normal citizenship rights like voting, jury service and freedom of movement in and out of the mainland.
As Kim Rubenstein and Jacqueline Field explain, because it was not considered ‘real’, their Australian citizenship could be unilaterally removed by executive regulation.
Like Edelman J in Love & Thoms, Kirby J in the Ame decision acknowledged the racism of past Australian lawmakers, saying Calwell’s 1948 statement and “repeated references to ethnicity and race in the parliamentary debates” reflected a concern to preserve to the Commonwealth the power to exclude from entry into the Australian mainland foreign nationals and even British subjects who were “ethnologically of Asiatic origin” or other “pigmentation or ethnic origin”.
But, as Rubenstein and Field note, the High Court in Ame saw no need for post-colonial reckoning with past discrimination.
The nature and security of Australian citizenship was “left floating, adrift on…the tides of prejudice”.
In this way, highly racialised policies from early 1900s Australia continue to cause personal hardship into the 21st century.
The High Court agreed that Mr Ame’s birth in Papua in 1967 meant he had been born in ‘Australia’ under the Citizenship Act 1948.
However it said the meaning of ‘Australia’ in 1975 under the Migration Act 1958 was different, excluding Papua and other external territories.
[Ame] was an Australian citizen but also an ‘immigrant’ and could be kept out of ‘Australia proper’.
This meant he automatically lost Australian citizenship when he became a Papua New Guinean citizen on Independence Day.
And as a non-Australian citizen he was not legally a member of the Australian community and could be deported from this country under the Migration Act.
In September 2020 the Guardian said that in recent years thousands of Papuans living in this country and born as Australians have lost their Australian citizenship, often without their knowledge. The Guardian mentioned Akee Charlie, born on Papua’s Daru island in 1970 before moving with his family a short distance across the Torres Strait to Queensland’s Erub island.
In 2015 he was stripped of Australian citizenship and spent five years in immigration detention.
He was released after the High Court’s Love & Thoms ruling that First Nations people like Mr Charlie were not ‘aliens’ and could not be deported.
But his Australian citizenship was not reinstated. Legally he is stateless.
Charlie told the Guardian he lives in fear every day.
“When I walk around Cairns…I have no identification to prove who I am…they will have to give me back my citizenship. I was born a citizen and have always been a citizen.”
The High Court’s decision in Ame means that in 2021 Troyrone Zen Lee, a man born in Papua whose Australian passport was first issued over 40 years ago, may lose his right to stay in this country.
Lee was born in Port Moresby a few months before independence.
In 1982 Mr Lee’s family moved to Brisbane. His Australian passport was renewed at least four times after first being issued in 1979.
Imagine his shock in 2016 when told by a Home Affairs official during another routine renewal that he was not in fact an Australian citizen. When he challenged this decision, the Federal Court said Home Affairs was wrong.
But as a lower court it could not question the Ame precedent. Instead, it found a way around this, noting that when Mr Lee was a child, Australian authorities did not treat him as an ‘immigrant’.
This meant he had a right of permanent residence on the mainland and did not become a Papua New Guinean citizen at Independence. So he had never lost the Australian citizenship he was born with.
The Commonwealth has appealed the Federal Court decision and Mr Lee may yet lose his birthright Australian citizenship. If the High Court considers the matter it will have the opportunity to reconsider its Ame judgment which has led to such cases.
Australian citizenship & the independence of PNG
PETER M MCDERMOTT
The High Court of Australia has recognised that citizenship is a statutory concept. As Dowsett J remarked in Walsh Federal Court, “citizenship is purely the creature of statute”. What can be conferred by Parliament can be withdrawn by Parliament.
The circumstance of this wholesale withdrawal of citizenship from Australian citizens was certainly unique in Australian history.
It was achieved by the operation of both New Guinea law and Australian law. Under Papua New Guinea law, there was a prohibition against dual citizenship in section 64 of the Constitution of the Independent State of Papua New Guinea.
Under Australian law, the relinquishment of sovereignty under section 4 of the PNG Independence Act necessarily had the consequence that, upon independence, the people of Papua New Guinea ceased to be citizens of Australia.
The wide regulation-making power in section 6 of the PNG Independence Act also conferred authority making power in section 6 of the PNG Independence Act also conferred authority upon the Executive to make a regulation to withdraw Australian citizenship from many of its citizens….
The Australian citizenship that the Papuans had possessed before Independence Day was, as the Constitutional Planning Committee fully appreciated, not a “real foreign citizenship”.
This is why the expression “real foreign citizenship” is to be found in section 65 of the Constitution of the Independent State of Papua New Guinea.
The nominal Australian citizenship possessed by Papuans would not enable them to enter the Australian mainland.
In [the case of] Ame, Kirby J emphasised that the Constitution of the new Independent State gave its citizens a “real citizenship”.
Justice Kirby also pointed out that “[i]n place of a veneer of citizenship were substituted substantial and enforceable rights of citizenship of Papua New Guinea that conform to international law”.