Making new citizens swear allegiance to Australia is so outdated it’s literally mediaeval

Prime Minister Malcolm Turnbull’s exquisite pivot to the centre continues to delight and amaze (the media; the public stopped caring long ago), as he seeks to realign the Coalition with mainstream thought on what he has presumably come to believe are the real issues: tax, education, health and energy prices. In short, the levers of inequality in modern society.

At the same time, Turnbull throws bones to the right of his party, just enough he hopes to keep them from starting the mutiny that would consume them all.

One such harmless trifle, one assumes the Prime Minister has satisfied himself, is a new bunch of changes to Australia’s citizenship laws, designed to harden the path to citizenship. This, he obviously thinks, is easy red meat for the Murdoch press and its readers. Sure, nobody believes him sincere when he says we must all be Australian “patriots” now; the word must feel like cement in his educated mouth. However, it’s a small price, I guess he figures, for some clear air in the party room while he gets on with turning the Liberal ship back to the sensible middle course.

In fact, this offering by Turnbull is no trifle at all, whatever he chooses to believe; it takes us substantial steps further down a monumentally retrograde path initiated by his predecessor.

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It was two years ago that Tony Abbott introduced big changes to the Citizenship Act designed to make it vastly easier to take away the citizenship of people convicted or accused of involvement in terrorism. It all sailed through Parliament with Labor Party support. It was, in my view, devastatingly bad law, but there was one element in particular that the government slipped into the amendments and which I said at the time was going to be a sleeper.

The word is “allegiance”. Before 2015, it had no part in Australian law. Then section 33AA was inserted in the act. It says that dual citizens will automatically renounce their Australian citizenship if they act “inconsistently with their allegiance to Australia” by engaging in certain types of bad conduct.

Now the government has announced, among its planned further changes to the citizenship laws, that it “has decided to strengthen the Australian Values Statement by adding a reference to the fundamental requirement of allegiance to Australia”, and that it will also amend the Pledge of Commitment taken by new citizens to include a pledge of allegiance to Australia.

Australian citizenship was not a thing before 1949. Before then, everyone in Australia was a British subject. In 1949, they all became Australian citizens when we achieved full sovereign independence from the United Kingdom.

Everyone born into citizenship, or who acquired it, between 1949 and 2015 was not asked or required to pledge allegiance to Australia. Allegiance was not an element of citizenship, in law or custom.

My standard disclaimer applies: this is not a fiddly point of legal nicety. Allegiance is a concept with real content; it changes relationships fundamentally.

Allegiance was a mediaeval construct. It meant personal loyalty to the monarch, of a profound kind. It was an incident of the feudal system, in which everyone owed an indivisible and inescapable personal duty of obedience and fealty to the king. Citizenship didn’t exist back then. Everyone born in England was a subject of the king, entitled to his protection and obliged by a permanent allegiance to him.

That, in the law, remained the case for Australians until 1949. Then, as well as becoming Australian citizens, we lost our status as British subjects of the Queen and became Australian subjects of the Queen (she is, separately, the Queen of England and the Queen of Australia). Our personal allegiance to her continued and remains today.

Citizenship is a modern concept, developed to support the creation of the nation state. It does not, inherently, incorporate allegiance. The accident of birth, in mediaeval political philosophy and law, gave rise to allegiance because the person of the monarch was the state and the whole thing depended on everyone buying that. It doesn’t automatically follow today that being born in a particular country and thereby gaining its citizenship imports a reciprocal duty of allegiance.

[Things that happened in Parliament this week other than Gonski]

What’s the big deal? Don’t we obviously have to owe something like allegiance to our country? Yes, we do have to owe something, but it isn’t allegiance. Our essential duties can and should be framed in the negative: not to commit treason or espionage, not to seek to overthrow the government, not to fight for an enemy when we are at war, not to break the law. These are the obvious responsibilities of citizenship, and they fall well short of a requirement of allegiance.

The question is, what is citizenship? It is a recognition of legal status, carrying the right to live here and access all the freedoms of a citizen. It aligns with the implicit assumption of modern post-feudal society that we are all free individuals, entitled to do as we wish, constrained only by laws properly made for valid purposes within the bounds of our constitution. All restrictions on our freedom of thought, expression and action must be justified by a higher purpose, and the courts stand as our protection against over-reach by the legislature or executive.

Allegiance is the exact opposite. It assumes the absence of personal freedom, because its foundation is personal loyalty to another. Historically, to the crown. By the changes to the Citizenship Act, that personal loyalty is to be owed instead to Australia, the nation.

This could not be more profound. The 2015 amendments, and the planned 2017 additions, change our relationship to our country. All of us. We are to be no longer free. We owe allegiance to Australia; the starting point is duty, loyalty, fealty. Our freedoms, such as they are (remember we have no human rights in Australian law), will exist only by exception to our primary allegiance.

When new Australian citizens pledge, instead of loyalty, allegiance to Australia, they will be signing away the essence of what it is to be a free person, and accepting instead a role of subservience which the Enlightenment was supposed to have killed off. By necessary implication, those of us who are citizens already will share that same status.

Of all the seriously screwed up things that have been done to us in the name of national security, this is the very worst. We really need to wake up.