Academic journal article Australian International Law Journal

Conceptualising Australian Citizenship for Children: A Human Rights Perspective

Academic journal article Australian International Law Journal

Conceptualising Australian Citizenship for Children: A Human Rights Perspective

Article excerpt

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. …

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