By Iggy Kim
On April 13, by a vote of two to one, the full Federal Court upheld the government's right to deport a two-year-old Australian-born child by denying refugee status to his family. Shi Hai Chen was born to Chinese asylum seekers Ren Bing Chen and Tang De Ting at the Immigration Department's Port Hedland detention centre.
The parents and another son have been in mandatory detention since they arrived without papers in November 1994 with 84 other refugees. Chen and Ting's eldest son, born in 1990, has now spent nearly half of his nine years behind barbed wire.
The ruling reversed the judgment last June by Federal Court Justice Robert French which allowed the family to stay.
Chen, Ting and their eldest son fled China's harsh population laws, which ban marriage for men under 25 and women under 23, and limit married couples to one child. Any successive child is denied equal access to welfare, health and education. Because Chen and Ting married when they were 21 and 20 respectively, their first son is considered a "black" or illegal child, as are Shi Hai and a sister who remained in China.
Justice French considered these circumstances cause to give refuge to the Chens. However, the full bench upheld immigration minister Philip Ruddock's appeal, putting the blame on Shi Hai's parents: "... but for his parents' decision ... to bring him into the world, he would not face persecution".
Helped by refugee advocates, Chen and Ting will appeal to the High Court.
Nationality
These developments speak volumes about the attempt of First World countries to erect a fortress around their monopoly of global resources. The fact that a person born in Australia could be forcibly sent to another country to suffer inevitable persecution signals a qualitatively sharper attack against the rights of asylum seekers. It brings into question the determination of a person's nationality.
From January 29, 1949 (when Australian citizenship began), until August 20, 1986, children born in Australia automatically acquired citizenship at birth. The only exceptions were those born to diplomatic staff and "enemy aliens".
In 1986, this principle was reversed by the Hawke Labor government to allow citizenship at birth only when one parent is a citizen or permanent resident. Passed in the wake of the 1984 hysteria about "too many" Asian immigrants and in the midst of a severe dip in the economy, the Australian Citizenship Amendment Act was explicitly motivated by fears that visitors would abuse automatic citizenship by birth. The change was accompanied by a budget which made major cuts to English-language courses.
Against this backdrop, the ruling on Shi Hai Chen, while a landmark, is not legally controversial. Much more questionable is the morality of forcibly detaining asylum seekers while they await decisions on their status.
What is to be the status of children born under these conditions? Are they not objectively and socially Australian, even if in a highly oppressed position?
The 1986 law denies citizenship even to children born and raised here to legal asylum seekers if the parents are eventually denied refuge. This also greatly increases the risk of making people stateless: a person's birth in Australia may hinder their acquisition of citizenship from another state.
A 1994 review of citizenship law by the Joint Standing Committee on Migration reaffirmed the 1986 amendment. More disturbingly, the collusion of migrant bureaucracies was revealed by a submission from the Victorian Immigration Advice and Rights Centre that stated: "... people would come through on a transit visa, pop into the airport, deliver a child and then move on. The child can acquire citizenship and it also gives the parents certain rights and entitlements."
For most of this century, Australian capitalism flourished through the mass influx of migrants. But with the First World producing more commodities than it can sell profitably, its governments now regard immigrants, not as a source of new wealth, but as a burden on their islands of privilege. Just as important is whipping up a fortress mentality to ideologically bond First World working people to their rulers.
Nationalism
Conflicts over citizenship go back to the rise of the capitalist class. With the mobilisation of the masses to replace feudalism with democratic nation-states, the question of who was to compose the new nations became politically important. Citizenship came to embody the free association of the propertied (male) townspeople, entailing civic rights and obligations.
Ironically, the liberality of Australia's pre-1986 citizenship was a legacy of Britain's monarchical hangovers. Until 1948, all those born in any part of the British Empire were considered subjects of the crown. This was advantageous for a capitalist state that was still relatively autocratic and needing to justify its imperialist policies in terms of a global "civilising mission".
In the late 1940s, Britain and independent countries in the empire began to enact citizenship laws. Britain and Australia retained the principle of jus soli (citizenship by birthplace), along with the status of British subject.
Legal changes in 1962 and 1968 — the latter following the racist railings of Tory proto-fascist Enoch Powell — restricted this birthright to British subjects who live in Britain. But it was not until the Thatcher government brought in a revised nationality law in 1983 that the principle of jus soli was overturned and citizenship was limited to those born of at least one British citizen parent.
In Australia, the 1901 "white Australia policy" did not stop the government from retaining an unconditional jus soli in the 1949 citizenship law. This may have been due to the policy's reliance on racial controls at the point of entry.
Nevertheless, the application of jus soli could not avoid the pressures of such a racist society, nor was it meant to. For instance, in separate cases in 1907 and 1925, two Australian-born people who had left for China as children were barred from re-entry as adults after failing English dictation tests. After a High Court appeal, one was allowed to stay on the basis that his mother was a white Australian.
Racism
For much of this century the popular-ideological notion of what made someone an Australian was highly racialised. Australian national identity evolved along racial lines because the formation of the Australian nation-state in 1901 was not driven by a mass upsurge with political principles as its centrepiece, but by the rise and consolidation of white supremacist racial identification.
Mass agitation for Australian racial-national unification from the 1870s was spearheaded by the trade union movement, whose prime aim was the protection of a very privileged working class from the uncontrolled "dumping" of cheap foreign labour.
Early Australian racial nationalism was centred on the supremacy of "British stock". This basis for national unification is similar to that of Germany last century. After the failure of the 1848 anti-feudal revolution, the political struggle to unite the disparate elements of the German nation was overtaken by an ideology of ethnic-cultural unification.
Unlike Britain, Germany had neither the legacy of a long-entrenched social-territorial-political integrity nor the unrivalled imperial strength to freely take in anyone as a royal subject.
Thus, ever since, Germany's citizenship and nationality laws have operated strictly on the principle of jus sanguinis, (i.e., German descent). The unjust result is that many non-Germans of German descent are currently "returning" to Germany with equal citizenship rights while second- and third-generation Germans of Turkish descent are still condemned to live as "foreigners" in their own country.
In this country, recent Laborite visions of a multicultural republic have attempted to replace Australia's tradition of a racial national identity with a political one. This is the essence of multiculturalism — an ostensibly non-racial national identity that can underlie a more enduring nationalism.
However, the ease with which Pauline Hanson was able to revive the old racial nationalism demonstrates the weakness of Labor's project, especially when it is accompanied by massive attacks against working people's living standards.
Democratic rights
By contrast, countries formed out of successful anti-feudal revolution, through which they developed national identities based on powerful political traditions of bourgeois-democratic rights and liberties, have had relatively more progressive nationality and citizenship policies.
In the United States, the principle of jus soli is codified in the constitution. This was affirmed by a Supreme Court ruling in 1998 that Congress could not deny citizenship to anyone born in the US, regardless of the citizenship of their parents.
Similarly, since the French Revolution, the principle of jus soli has been progressively extended in that country.
In France and the US, categories of citizenship and nationality are properly seen to be constituted socio-politically rather than ethnically culturally. Frenchness and Americanness are acquired, not inherited.
Yet even in France and the US, the fortresses have gone up. In France in 1993, the first laws were passed to limit citizenship rights for those born in France. Now, only those born to stateless parents or who are not attributed the citizenship of their foreign parents are automatically given citizenship.
However, unlike the 1986 legal change in Australia, the change in France was preceded by big debates and struggle. Similarly, recent changes in Californian law which deny the children of "illegal aliens" equal educational and welfare rights were preceded by widespread and vigorous campaigns.
In Australia, the 1986 law was passed without a peep, as well as subsequent restrictions to social security for new immigrants. Instead, popular indignation has focused on the ideological assault of Hansonism.
Yet, Hansonism goes on without Hanson, as seen in the ruling against Shi Hai Chen. A key demand of anti-racist movements has to be the repeal of the 1986 attack on the right of all people born here to stay here.