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The Oxford Handbook of the Australian Constitution edited by Saunders, Cheryl; Stone, Adrienne (8th March 2018)

Part III Themes, Ch.14 Citizenship

Elisa Arcioni

From: The Oxford Handbook of the Australian Constitution

Edited By: Cheryl Saunders, Adrienne Stone

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 07 December 2019

(p. 339) Chapter 14  Citizenship

A.  Introduction

There is an uneasy relationship between the Australian Constitution and membership of the Australian polity. Unlike some constitutions, the Australian Constitution contains no mention of ‘citizenship’.1 Instead, formal membership of the Australian community is determined by reference to the constitutional categories of ‘subjects of the Queen’ and ‘people of the Commonwealth’ and through the legislative definition of citizenship under federal law. These peculiar features of the Australian context reflect what is generally assumed to be the modest role of the Constitution in determining national identity and the fact that Australia was not an independent nation at the time of the Constitution’s drafting. Developments in legislation, constitutional jurisprudence, and mooted constitutional amendments all point towards a greater role for the Constitution in determining Australian ‘citizenship’ in the future.

(p. 340) B.  British ‘Subjects’ to Australian ‘Citizens’

At the time of drafting the Australian Constitution, the nationality status of persons in the Australian colonies was ‘subject of the Queen’. Australians shared that status with all other legal members of Britain and the British Empire.2 That status was retained through federation as an indicator of constitutional membership, rather than the Constitution including an Australian definition of membership.

The status of ‘subject’ appears in only two sections of the Constitution. The first is section 34, which sets the interim qualifications for members of the federal Parliament.3 The requirement of subject status appeared in every version throughout the drafting of the Constitution and was not debated. The requirement of subject status was in keeping with colonial requirements with respect to the colonial legislatures.4 The Parliament was given the power to change the qualification requirements,5 but maintained the qualification of ‘subject’ until its replacement with statutory ‘citizenship’ in 1984.6

The second section in which ‘subject’ is found is section 117. The path to the final form of section 117 was a long one.7 In the 1891 draft Constitution, there was a section which read:

A State shall not make or enforce any law abridging any privilege or immunity of citizens of other States of the Commonwealth, nor shall a State deny to any person, within its jurisdiction, the equal protection of the laws.8

This section was inspired by a combination of article IV, section 2 of the United States Constitution, and part of the Fourteenth Amendment to that Constitution.9(p. 341) It was not debated in the 1891 National Australasian Convention or at the 1897 sessions of the Australasian Federal Convention in Adelaide and Sydney. However, at the Melbourne session in 1898 the delegates made up for any previous lack of attention to issues of citizenship or legal status. After lengthy debate, the provision as set out above was struck out.10 A new proposal was made to give the Commonwealth legislative power over ‘citizenship’, followed by a provision defining Commonwealth citizenship; then a revised version of the 1891 clause was proposed. All were discussed and rejected.

Finally, Josiah Symon from South Australia introduced yet another version of the earlier proposals, close to the final form of section 117. This was agreed to, leaving reference to ‘subjects of the Queen’, but no mention of citizenship. The final form reads: ‘A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State.’

During the debates regarding what became section 117 the drafters assumed that subject of the Queen was the relevant indicator of membership, rejecting all proposals that would refer to ‘citizenship’.11 The delegates assumed, correctly, that ‘subject’ was the primary legal status for members of the Commonwealth at the time.12 A specifically Australian indicator of membership was neither appropriate nor necessary.

After federation, Australia and other self-governing components of the British Empire became ‘Dominions’, described in the Imperial Conference of 1926 as:

autonomous Communities within the British Empire, equal in status, in no way subordinate one to another in any aspect of their domestic or external affairs, though united by a common allegiance to the Crown, and freely associated as members of the British Commonwealth of Nations.13

By 1986 Australia became a constitutionally independent nation.14 Along the way a series of legal and political changes occurred, which together affected the constitutional concept of membership. The monarch changed from the Queen of the United Kingdom to the Queen of Australia. Australians became subjects of the Australian Queen and membership was determined by allegiance to that Queen. Thus, ‘the (p. 342) people’ in the Australian Constitution are now a national people, rather than a sub-category of subjects within the British Empire.

Membership under legislation became dependent on legislated ‘citizenship’ rather than the constitutional status of ‘subject’.15 There had been moves in Australia for an Australian nationality to be defined in law from the mid-1940s.16 Other Dominions were pursuing similar changes and a meeting of members of the British Commonwealth agreed in 1947 that there be a system of nationality across the Commonwealth. That system was to include each country defining for itself who were its citizens, with those citizens also having the status of British subject across the Commonwealth of nations.17

The federal Parliament enacted the Nationality and Citizenship Act 1948 (Cth), which came into effect on 26 January 1949.18 From that time, Australians had two statuses—all Australian citizens were also British subjects. The general rule was that persons born within Australia were Australian citizens.19 Citizenship could also be acquired by registration or naturalization.20 Any person who was an Australian citizen under the Act was ‘by virtue of that citizenship … a British subject’.21 That remained the case until legislation in 1969, which made a semantic, but symbolically significant, change to the legislation: a citizen would thereafter have ‘the status of a British subject’ rather than being a British subject.22 With the commencement of the Australian Citizenship Amendment Act 1984 (Cth) on 1 May 1987, almost every mention of ‘subject’ status was deleted from federal legislation.23

(p. 343) The story of the rise of legislated ‘citizenship’ status and the demise of constitutional ‘subject’ status is an example of the modest role of the Constitution in determining identity in Australia.24 Some constitutions embody basic values or commitments which unite (and to some extent define) the people living under them.25 By contrast, Australia’s constitutional culture is one where appeals are rarely made to the Constitution in discussions of Australian identity and values.26 The way in which the High Court (the ultimate arbiter of the interpretation of the Constitution in Australia) defers to the Parliament in determining Australian citizenship, is an example of this modest role of the Constitution.

C.  The Modest Constitution—Deference to the Parliament

Rather than the Constitution explicitly defining citizenship, legislative power is given to the federal Parliament with respect to naturalization and aliens.27 It is this power which the Parliament has used to create the Australian citizenship noted above. The legislative status of citizenship is logically connected to the constitutional status of membership—subject—and the constitutional status of exclusion—alien—by reliance on the common concept of allegiance. Allegiance is at the core of membership by being an indicator of inclusion, and its absence is an indicator of exclusion. The Court, in equating citizenship with allegiance, defers to the Parliament’s determination of membership, leaving the Constitution to recede into the background regarding national identity.

Allegiance is central to the category of subject of the Queen. This can be seen in the historical origin of that concept, its legal meaning at federation, and its ongoing meaning in High Court case law.28 The relevant medieval history was of personal allegiance, or allegiance to the person in whom power was vested—the person of the monarch.29 The notion of such personal allegiance was discarded by the nineteenth century, when there was a clear statement by the courts in England that allegiance was owed to the monarch in his or her political capacity, as a figurehead (p. 344) representing the sovereign, rather than to the natural person who wore the Crown.30 Nevertheless, allegiance remained at the core of subject status. That allegiance is now a legally ascribed allegiance to the sovereign, not a subjective feeling of attachment to the monarch, whether in a personal or political capacity. The change can be seen in the transformation of the monarch from the Crown of the United Kingdom to the Crown of Australia noted above, and then a legislated change of emphasis in the focus of allegiance to Australia as the relevant sovereign.31

Beyond the importance of allegiance, the Court has not given a clear definition of ‘subject’ in its reasoning regarding the one substantive reference to that status in the Constitution in section 117. In each case, the Court has assumed the relevant parties were subjects and proceeded to address the application of the section upon presumed subjects.32

At least for a few decades after federation, there were subjects of the Queen who could be excluded from the Commonwealth because they were categorized as ‘immigrants’.33 Whether or not a person was an immigrant depended on a test of substantive connection to the Australian community, rather than allegiance to a monarch. The relevance of the ‘immigrant’ category waned with the rise of the dominance of the ‘alien’ category in the 1980s.34 The impact of both the immigrant and alien categories over time reflects an ‘exclusive’ approach to membership of the Australian constitutional community.35 That is, constitutional membership has (p. 345) been determined more by the interpretation of categories of exclusion than by positive statements regarding inclusion.

Allegiance is central to the now-dominant category of constitutional exclusion—alien. The categories of alien and subject historically existed as a dichotomy—a person was either a subject or an alien.36 A subject had allegiance to the sovereign—today allegiance is understood to be owed to Australia. Anyone who is not a subject is therefore an alien. The Court has on several occasions been asked to address the meaning of ‘alien’ in section 51(xix) and in that context has illuminated the concept of ‘allegiance’ which is central to both ‘subject’ and ‘alien’ status. The Court has deferred to indications of allegiance seen in citizenship legislation to determine the outcome of those cases. The current state of the law therefore places statutory citizenship at the heart of constitutional membership and lack thereof as central to exclusion.

Legislation is implicated in a number of ways. One is through the Court’s accepting that legislative incursions into common law principles regarding nationality have constitutional consequences. The case which demonstrates most clearly the legislative manipulability of status is Singh.37 Prior to this case, the citizenship legislation had been changed so that people born in Australia after the legislation came into effect were no longer automatically citizens. Singh satisfied neither requirement in the legislation regarding the status of her parents nor length of time in Australia. Both her parents were Indian citizens and not Australian citizens and at the time of (p. 346) the case she was six years old. Singh argued she was not an alien because birth in Australia meant she was a constitutional national who could not be deported. The majority concluded she was an alien.

Historically, the British common law favoured the principle of jus soli, meaning that birth in the realm made a person a subject and therefore not an alien.38 Central to the reasoning of the majority in Singh was that that principle had been affected by legislation, with consequential effects on the constitutional meaning of ‘alien’.39

Legislation is also the key to identifying when an alien has taken up allegiance to Australia and thus moved from the alien category to constitutional inclusion through the process of naturalization. Naturalization is the first limb of the legislative power in section 51(xix), being the power to make laws with respect to ‘naturalization and aliens’. However, the Court has gone beyond simply confirming that the Parliament has the power to naturalize, to indicate that the only way for an alien to take up allegiance to Australia is through a formal process under naturalization legislation. This was seen in the case of Pochi v MacPhee.40 Luigi Pochi was born in Italy in 1939 and came to Australia in 1959 ‘with the intention of making Australia his permanent home’.41 Following imprisonment for a drug offence, Pochi was to be deported. Pochi challenged that order, arguing both that the legislation was not supported by the aliens power and that he did not fall within its operation. The facts were complicated by Pochi’s having applied for Australian citizenship. His application had been accepted but he had not been notified of that acceptance, and had not completed an oath or affirmation which was required before the issuing of a citizenship certificate.42 He had therefore completed all but the final formal step in the legislated process for becoming a citizen. Without that step, he had not formally indicated allegiance and therefore remained an alien.

The Court has held that a formal process for taking up the relevant allegiance was necessary for British subjects who arrived in Australia when the Queen was still the Queen of the United Kingdom, but stayed after the change to the Queen of Australia.43 Lacking statutory Australian citizenship such persons could be treated as aliens.44 The significance of legislated citizenship can also be seen when members (p. 347) of the Court relied simply on the status of ‘non-citizen’, a statutory status, in order to uphold a person’s treatment under legislation as a constitutional alien.45

The Court has also emphasized formal steps under law in order to determine foreign allegiance under section 44(i) of the Constitution. That section sets out the bases for disqualification from being chosen as a member of federal Parliament, stating:

Any person who is under any acknowledgment of allegiance, obedience or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power: … shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.46

While the text does not use the term ‘dual national’, that category of persons is affected by section 44(i). In order to be eligible to be elected as a member of federal Parliament at federation, a person had to be a subject—that was established by section 34, discussed above. Section 34 established a constitutional requirement of subject status, later overtaken by legislation which now requires Australian citizenship as a qualification. If we focus on the position at federation, the only persons who were caught by the disqualification in section 44(i) were those who were subjects and also had a foreign allegiance. If we consider the position today, section 44(i) applies to dual citizens.

As at 2000, it was estimated that between four and five million Australians were dual nationals, or entitled to take out dual nationality.47 The current Australian law allows for dual nationality. Prior to 2002, dual nationality was available to some but not all Australian citizens. Australian citizens by birth or descent automatically lost their Australian citizenship upon acquisition of the citizenship of another country through a ‘voluntary and formal act’; that is, if an Australian citizen was naturalized as a foreign citizen. The loss of citizenship did not apply to Australian-born citizens born with a foreign citizenship.

In Sykes v Cleary (No 2),48 the key case regarding section 44(i), the Court relied upon citizenship legislation to determine the relevant allegiance. The Court agreed that, under the common law, foreign citizenship which confers allegiance is usually (p. 348) determined by the operation of the relevant foreign law. In this case, the foreign law of Switzerland and Greece meant that Delacretaz and Kardamitsis (both naturalized Australian citizens) had a foreign allegiance. However, no member of the Court accepted that foreign law would be determinative in all cases. Instead, where foreign law conferred foreign allegiance, the Justices focused on whether the person in question had taken all ‘reasonable steps’ to renounce their foreign allegiance.49

The dominant approach by members of the Court was to emphasize formal legal steps as determinative of the answer to that question. The most significant factor for most of the members of the Court was that neither of the candidates had made a formal demand or application, available under the foreign law affecting each of them, to effectuate their desire to renounce their foreign nationality.50 At the heart of the reasoning of six of the seven Justices with respect to ‘allegiance’ was the operation of Australian and/or foreign citizenship legislation. The Court has not yet had to consider a case of a dual national to determine whether Australian citizenship would mean such a person could not be treated as an alien;51 that is to say, whether allegiance to Australia would override or prevail over a person’s foreign allegiance in order that they not be categorized as an alien.

There is one further example which indicates the ability of the Parliament to affect constitutional membership through legislation—the case of Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Ame.52 Amos Ame was divested of his Australian citizenship through delegated legislation. The Court upheld the validity of the relevant regulation. Ame was transformed from a citizen into an alien because his allegiance to Australia was removed by statute.53 That led to his having the status of alien—a constitutional status. The Court noted that the power under section 51(xix), with respect to ‘naturalization and aliens’, extended to the legislation challenged in this case.54

(p. 349) The Court has accepted that legislation in the fields of citizenship and naturalization determines allegiance, which in turn determines constitutional membership or exclusion. While the rules regarding allegiance were derived historically from the common law, the Court has accepted that the common law has been overtaken by legislation and that allegiance can therefore be determined by legislation. Allegiance is thus a malleable concept and the Parliament can change how it is signified through changes in legislation. Legislated citizenship acts as the indicator of allegiance to Australia. Aliens can only take up allegiance to Australia through the legislated process of naturalization. There is also the potential for legislation to work in the opposite direction—removing a person’s citizenship and therefore a person’s allegiance to Australia, thus transforming the person into an alien. Citizenship legislation has come to define, in practice, who is a constitutional member and who is excluded.

The story told so far is one of dominance of the Parliament and the modest involvement of the Constitution with respect to citizenship in Australia. However, that story is complicated by taking a broader perspective on Australian constitutional jurisprudence and considering the current challenges to the hitherto-modest role of the Constitution.

D.  Challenges to the Modest Constitution?

Despite the Court failing to provide substantive content to the constitutional categories of membership and exclusion beyond that ascribed by Parliament, the Court has left open the capacity of the Constitution to play a more significant role. The Court has noted that the Parliament cannot treat someone as an alien who is not ‘truly’ an alien.55 While to date those statements have not been fully developed, recent legislative changes to citizenship deprivation provide the impetus for such development and a broader view of constitutional jurisprudence (beyond nationality status) provides the basis for the direction of that development. Mooted constitutional amendments may also deepen the Constitution’s role in determining membership of the Australian community.

In 2015, the Parliament amended the Australian citizenship legislation in order to ‘broaden the powers relating to the cessation of Australian citizenship for (p. 350) those persons engaging in terrorism and who are a serious threat to Australia and Australia’s interests’.56 Prior to the amendments, citizens could be stripped of their citizenship following conviction for specific offences. The 2015 amendments introduced deprivation on the basis of specified ‘terrorist-related’ conduct, included deprivation of citizenship following a person fighting for or assisting a terrorist organization, and added ‘terrorist-related’ offences to the list of convictions which may lead to citizenship deprivation.57 The changes extend the bases of citizenship deprivation only for dual nationals, thereby avoiding the prospect of statelessness.58

The amendments explicitly rely on the concept of allegiance, with their legislated ‘purpose’ being to recognize that ‘citizens may, through certain conduct incompatible with the shared values of the Australian community, demonstrate that they have severed that bond and repudiated their allegiance to Australia’.59 The listed offences or conduct are therefore evidence of such repudiation which warrants deprivation of citizenship, regardless of how a person’s Australian citizenship was acquired. That is, citizens are subject to these new bases of loss of citizenship whether they are Australian citizens by birth or naturalization.

As Irving and Thwaites have noted, the legislation ‘relies on a substantive, multidimensional notion of disallegiance’.60 The introduction of substantive content to the concept of allegiance under legislation leaves it open to the Court to consider the constitutional validity of the Parliament’s judgment regarding allegiance. If the new grounds of revocation were challenged, the Court may consider whether the legislation is within the naturalization and aliens power by determining whether the listed offences and conduct do demonstrate disallegiant conduct such as to make a person truly a constitutional ‘alien’.

The Court may take a more critical approach to the legislation than in the past, drawing upon broader jurisprudential material than only that related to nationality status. Some hints of a specifically constitutional citizenship can be seen in the reasoning of McHugh J, who served on the Court from 1989 to 2005. Justice McHugh used the phrase ‘constitutional citizenship’ as a synonym for ‘people of the Commonwealth’, and to indicate that the latter has a protected position under the Constitution.61 Although the Court has not yet taken up this general connection (p. 351) between ‘the people’ and ‘citizenship’, the Court has developed the concept of ‘the people’ to provide some guidance regarding membership that may lead to just such a connection.

E.  Membership Beyond Nationality—‘The People’

Taking a broader view of membership under the Constitution, beyond nationality status, one can see that membership is dependent on a series of categories of persons revolving around the broad category of ‘the people of the Commonwealth’. As Zines has stated:

‘The people’, as a concept, has been prominent for the past 100 years in all attempts to define or describe our political and social structure. The Constitution introduced this term as a legal concept in several of its provisions, though not always with the same meaning.62

The sub-categories include categories of persons dependant on geography (people of the States and Territories63) as well as the indicators of nationality noted above (subjects and aliens).64 At the core of the concept of ‘the people’ is the democratic or political role of ‘the people’ under the Constitution.65 That is, ‘the people’ represented by the ‘electors’. The judicial development of the meaning of ‘the people’, particularly in their political capacity, points towards the possibility of a more substantive role for the Constitution to play regarding citizenship as membership and provides a rich source of constitutional rules for membership.

The primary textual indicators of ‘the people’ are to ‘the people’ acting as electors. The reference to the peoples of the colonies in the preamble to the Constitution Act (p. 352) is a reference to the electors in those colonies voting to adopt the draft Constitution Bill.66 The reference to the ‘people of the Commonwealth’ in section 24 is to ‘the people’ choosing members of the House of Representatives. That choice, and the choice of ‘the people’ of the States in choosing senators in section 7, occurs through elections.67 Thus, ‘the people’ is conceptually linked to the category of ‘electors’, a category referred to directly in section 128 which establishes the method of changing the Constitution through referenda.

As French CJ has stated, the two groups—‘the people’ and ‘the electors’—seem to have converged.68 They are not the same, but more of ‘the people’ now fall within the category of ‘electors’ than in the past. The electors are a subset of ‘the people’. That subset has to be sufficiently inclusive such that, when the electors exercise their choices of members of Parliament under sections 7 and 24, the choices can be understood as being of ‘the people’. The convergence between the two groups—‘the people’ and ‘the electors’, the representative relationship between them, and the consequential limits on disenfranchisement developed in case law are all tools which can be used to develop a constitutional concept of membership.

The Court has given the concept of ‘the people’ serious jurisprudential work to do through a series of cases relating to federal elections. In 1997, a unanimous Court recognized a constitutional freedom of political communication as necessary to ensure ‘the people’ exercise an informed vote in elections.69 That freedom limits federal and State legislative power and the common law. Thus, ‘the people’ is no mere slogan. While the Court has granted the Parliament significant leeway in relation to the details of electoral regulation,70 the Court has been strict in ensuring that, regardless of the method of voting adopted by the Parliament, the franchise must be broad enough such that the electors can be said to represent ‘the people’. It is this relationship that may lead to constitutional rules of membership.

The representative relationship between the people and the electors was developed over a series of cases,71 reaching its culmination when the franchise itself was at issue. In both Roach v Electoral Commissioner 72 and Rowe v Electoral Commissioner 73 the Court invalidated legislation which limited the federal franchise. In Roach, a law disenfranchising all prisoners was struck down as being arbitrary but the Court revived the earlier law disenfranchising prisoners serving a sentence of three years (p. 353) or more. In Rowe, a law reducing the time in which eligible electors could enrol to vote was struck down because of its practical effect of disenfranchisement without sufficient justification. In each of the cases, the majority assumed a universal adult franchise as the constitutional baseline required by the phrase ‘chosen by the people’ in sections 7 and 24. Any legislation limiting the franchise would be tested against that baseline to determine whether there was sufficient justification for the restriction.74

The reasoning in the franchise cases provides a series of jurisprudential tools to determine constitutional membership, although they do not lead to a simple statement of inclusion. The statements of the members of the Court in both cases imply that a franchise of all adult citizens is necessary to achieve a direct choice by ‘the people’ in accordance with sections 7 and 24.75 This baseline was determined by considering the legislative broadening of the franchise over time. The method of analysis of the Court led to a ratchet effect, whereby the franchise cannot be reduced beyond a certain limit. In taking this approach, there must be a minimum content to the citizenship rules in order to not insert restrictions on citizenship which have the same effect as disenfranchisement through the electoral laws. That is, if citizenship were restricted on bases which would be invalid on the reasoning of the franchise cases,76 and the franchise laws required citizenship in order to be eligible to vote, then the outcome would be the same as if the electoral law directly imposed that disqualification. Considered in this way, restrictions on discrimination with respect to citizenship rules must also be imposed in order to be consistent with the requirement of choice by ‘the people’ in sections 7 and 24 of the Constitution.

However, there are two additional points regarding the baseline which complicate the picture. First, the Court recognized legitimate restrictions on membership of the political ‘people’, suggesting a normative element of membership (at least as amongst the electors). In determining that disenfranchisement on the basis of conviction of three years imprisonment was valid in Roach, the Court recognized that a person could be excluded from the electors due to behaviour which demonstrated rejection of community standards. That is, if a person were sufficiently ‘bad’, they could be excluded for the duration of their imprisonment. That exclusion was framed in terms of removal from the privileged ‘elector’ category, rather than removal from the constitutional ‘people’ per se. It would take a further step in the development of the concept of ‘the people’ for the Court to recognize a normative foundation for ultimate membership.

(p. 354) Second, the reliance on legislated citizenship as the relevant baseline may be misplaced or may be sufficient but not determinative of the boundaries of constitutional membership. Justice Heydon, in dissent in Rowe, questioned why sections 7 and 24 should ‘speak only to citizens’ when other sections of the Constitution have wider effect, suggesting that some non-citizen groups are ‘in a sense part of “the Australian people” ’.77 Membership may be broader than only legislated citizenship.

Another approach available to the Court is to follow the lead taken in Roach and Rowe with respect to how restrictions on membership may be identified. That is, begin from an assumption of inclusion and then assess the legitimacy of restrictions on membership. In both cases the majority demonstrated concerns for arbitrary exclusion, a need for a substantial reason for exclusion, and adopted proportionality analysis by requiring a legitimate purpose for exclusion as well as a reasonably appropriate and adapted means of exclusion before exclusion would be valid. In Roach, mere imprisonment was not sufficient—the majority confirmed a minimum three-year sentence as a valid means of disenfranchisement because it reflected a normative rejection of community standards and was sufficiently serious to justify a person’s temporary exclusion from amongst the federal electors. In Rowe, the restriction by only a few days on the time in which to enrol before an election was too great an intrusion on the franchise, given the lack of proof regarding any serious risk of electoral fraud caused by the limited period in which the Australian Electoral Commission had to prepare and check the electoral rolls. Some of the concerns relating to arbitrary exclusion and the need for proportionality could be translated across to limit the way in which the Parliament determines ascription of allegiance and therefore constitutional status.78

The developing law regarding ‘the people’ points towards a stronger role for the Constitution to play in determining membership of the constitutional community in Australia. The concept of ‘the people’ has been used to invalidate legislation, which means the Court is willing to give content to that phrase and, in doing so, restrict the capacity of the Parliament to define membership. However, the reasoning in the cases to date requires further development before a clear picture of constitutional membership will emerge. At present, we see baselines of inclusion and tools to determine legitimate restrictions on membership. But it is not only lines of potential judicial development that may give the Constitution a stronger role in this field. There are also mooted constitutional amendments to consider.

(p. 355) F.  Mooted Amendments

The Australian Constitution contains no direct rhetorical appeal to the formation of the Australian nation, as it was written prior to Australia’s legal and political independence. There is no reference to significant events or motivations leading to the drafting of the Constitution in order to define a new polity. Instead, the Constitution is usually characterized as a prosaic agreement between former colonies to agree on structures of government and thereby federate. There has been no substantial re-writing of the text to reflect formal independence, recognition of the Indigenous Peoples of Australia, or the changing demographic composition of the population. Some of that may change.

Section 128 of the Constitution sets out the mechanism for making textual amendments. The federal Parliament must pass a bill proposing a specific change and then ‘the people’, through the electors, must agree to the change. There are two mooted constitutional amendments which may lead to a richer constitutional basis of citizenship. The first is the possibility of an explicit inclusion of ‘citizenship’ in the constitutional text, to reverse the ‘citizenship’ silence produced by the original drafters’ reliance on the pre-existing legal status of ‘subject of the Queen’. Such a change was proposed in 1999 at the failed republican referendum. One of the constitutional amendments attached to the republican proposal was the replacement of the constitutional status of ‘subject of the Queen’ with ‘Australian citizen’.79 ‘Australian citizen’ would have been defined, in a new section 127 of the Constitution, as ‘a person who is an Australian citizen according to the laws made by the Parliament’.80 Such a change would clarify the relationship between statutory and constitutional citizenship, deferring entirely to the Parliament in determining membership. A more complex but nuanced textual amendment may include reference to ‘citizenship’, but with some substantive content beyond simple statutory definition.

A second area of potential constitutional reform is in relation to the ‘recognition’ of Indigenous Australians.81 The precise timing or form of such recognition is uncertain. However, it may involve alterations to the constitutional text to remove references to ‘race’; prevent detrimental treatment on the basis of racial identity; explicitly recognize the unique status, history, and cultures of the Indigenous Peoples of Australia and provide for a voice for Indigenous Australians in the federal Parliament. The legal effect of such changes is uncertain, given the lack of clarity regarding how the Court would interpret such amendments and to what extent (p. 356) (and how) the Court would take into account the intention of the electors in making any textual change.82 Nevertheless, explicit recognition of Indigenous Peoples in the Australian Constitution could signal a potential shift in the public perception of the role of the Constitution in articulating an Australian constitutional identity and prompt jurisprudential developments in this field.

G.  Conclusion

The Australian Constitution contains no mention of Australian ‘citizenship’. The High Court to date has not engaged in sustained, explicit, examination regarding the indicia of a constitutional ‘citizen’. This is unsurprising given Australia lacked independence at the time of the Constitution’s drafting and having regard to what is generally assumed to be the modest role of the Constitution regarding identity. However, neither explanation can be maintained now and into the future. Australia is now, for most purposes, an independent nation state. The modest role of the Constitution is being challenged through controversial legislative changes to citizenship and also by jurisprudential developments in the Court, creating richer resources for a constitutional concept of membership. The people and the Parliament together may either explicitly define citizenship through a constitutional amendment or signal a shift in the role of the Constitution through amendments recognizing the Indigenous Peoples of Australia. A combined series of developments by the people, the Parliament, and the Court should lead to a more explicit and modern constitutional concept of citizenship in Australia.

Footnotes:

1  The only reference to ‘citizenship’ is to foreign citizenship as a basis for disqualification from being elected a member of Parliament: s 44(i).

2  John Quick and Robert Randolph Garran, The Annotated Constitution of the Australian Commonwealth (LexisNexis Butterworths 1901) 957 (emphasis added).

3  While s 34 refers only to the qualifications for members of the House of Representatives, s 16 of the Constitution requires that the qualifications of senators be the same.

4  For example, in New South Wales, subject status was either explicitly required, or indirectly required by virtue of members having to be eligible electors which in turn required subject status: Anne Twomey, The Constitution of New South Wales (Federation Press 2004) 399–400.

5  See s 51(xxvi).

6  Statute Law (Miscellaneous Amendments) Act 1981 (Cth), s 34, this provision commenced operation on 26 January 1984.

7  See the outline of its development in John A La Nauze, The Making of the Australian Constitution (Melbourne UP 1972) 68, 229–32.

8  Ch V, cl 17 – see in John M Williams, The Australian Constitution: A Documentary History (Melbourne UP 2005) 456.

9  Article IV, s 2 reads: ‘The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States’ and the relevant part of the Fourteenth Amendment reads: ‘No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.’

10  Official Record of the Debates of the Australasian Federal Convention (Melbourne, 8 February 1898) 664-91.

11  Official Record of the Debates of the Australasian Federal Convention (Melbourne, 8 February 1898) 664–91; Kim Rubenstein, ‘Citizenship and the Constitutional Convention Debates: A Mere Legal Inference’ (1997) 25(2) Federal Law Review 295.

12  Official Record of the Debates of the Australasian Federal Convention (Melbourne, 8 February 1898) 665; (2 March 1898) 1752–53, 1764–68; (3 March 1898) 672, 1785.

13  Imperial Conference 1926, ‘Inter-Imperial Relations Committee Report, Proceedings and Memoranda’ at 2.

14  See Chapter 4 ‘Independence’.

15  See the exception in the Commonwealth Electoral Act 1918 (Cth), s 93(1)(b)(ii) which still refers to British subjects in a closed class, who retain their federal vote. For discussion of this history: Alastair Davidson, From Subject to Citizen: Australian Citizenship in the Twentieth Century (CUP 1997) and for the parallel changes in the United Kingdom: Rieko Karatani, Defining British Citizenship: Empire, Commonwealth and Modern Britain (Frank Cass 2003).

16  David Dutton, Citizenship in Australia: A Guide to Commonwealth Government Records (National Archives of Australia 1999) 14.

17  See report of the British Commonwealth Conference of Nationality and Citizenship (26 February 1947) quoted in Dutton (n 16) 14.

18  For detailed overviews of this Act: Michael Pryles, Australian Citizenship Law (The Law Book Company Limited 1981) ch 3; Kim Rubenstein, Australian Citizenship Law in Context (2nd edn, Lawbook Co 2016) ch 4.

19  With some exceptions, similar to the common law exceptions regarding jus soli and subject status noted above: Nationality and Citizenship Act 1948 (Cth), s 10(2).

20  Nationality and Citizenship Act 1948 (Cth), Pt III Divisions 2 and 3.

21  Nationality and Citizenship Act 1948 (Cth), s 7(1).

22  Citizenship Act 1969 (Cth).

23  Prior to which, Commonwealth legislation continued to refer to British subject status rather than citizenship, in order to determine legal rights and responsibilities. It was at about the same time as the passage of the Australian Citizenship Amendment Act 1984 (Cth) that legislation was passed to remove British subject status from other Commonwealth law: see Statute Law (Miscellaneous Provisions) Act 1985 (No 1) (Cth); Statute Law (Miscellaneous Provisions) Act 1985 (No 2) (Cth), which each removed the status of ‘British subject’ from Commonwealth legislation: also Public Service Reform Act 1984 (Cth). But note the Commonwealth Electoral Act 1918 (Cth), s 93(1)(b)(ii) which still refers to British subjects in a closed class, who retain their federal vote. There have also been legislative changes in the UK with the creation of the category of British ‘citizenship’: British Nationality Act 1981 (UK) and subsequent developments.

24  Elisa Arcioni and Adrienne Stone, ‘The Small Brown Bird: Values and Aspirations in the Australian Constitution’ (2016) 14(1) International Journal of Constitutional Law 60.

25  ibid 61–62.

26  ibid 63–65.

27  Section 51(xix).

28  Quick and Garran (n 2) 955.

29  See Calvin’s Case (1608) 7 Co Rep, 77 ER 377, 2 How St Trials 559 for the classic articulation of this position, and the consequences of it when a Scottish monarch became sovereign of the United Kingdom.

30  Isaacson v Durant (1886) 17 QBD 54.

31  See the change in the oath or affirmation of allegiance between the first federal naturalization legislation: Naturalization Act 1903 (Cth), s 7 (to Her majesty Queen Victoria, Her heirs and successors), subsequent legislation referring to the ‘Queen of Australia’: Australian Citizenship Act 1973 (Cth), s 19, consistent with the legislation regarding the change in title of the Queen of the same year: Royal Style and Titles Act 1973 (Cth) and now reference only to a ‘pledge of commitment’, being a pledge of ‘loyalty to Australia and its people’: Australian Citizenship Amendment Act 1993 (Cth), s 8 (still in place: Australian Citizenship Act 2007 (Cth). sch 1).

32  Street v Queensland Bar Association (1989) 168 CLR 461, 493 (Mason CJ), 505 (Brennan J); Goryl v Greyhound Australia Pty Ltd (1994) 179 CLR 463, 471 (Mason CJ), 475 (Deane and Gaudron JJ), 481 (Dawson and Toohey JJ).

33  R v MacFarlane; Ex parte O’Flanagan and O’Kelly (1923) 32 CLR 518; Donohoe v Wong Sau (1925) 36 CLR 404.

34  Migration Amendment Act 1983 (Cth), which came into effect on 2 April 1984. The change is signalled by the amendment to the long title of the primary Act (the Migration Act 1958 (Cth)), which was changed by s 3 of the amending Act as follows: ‘The title of the Principal Act is amended by omitting “Immigration, Deportation and Emigration” and substituting “the entry into, and presence in, Australia of aliens, and the departure or deportation from Australia of aliens and certain other persons”.’ This is of note, given that the word ‘alien’ does not then appear in the substantive provisions of the primary Act. Instead, the Act operates on the category of ‘non-citizens’. By implication, aliens are understood legislatively to be non-citizens.

35  Kim Rubenstein, ‘Citizenship, Sovereignty and Migration: Australia’s Exclusive Approach to Membership of the Community’ (2002) 13(2) Public Law Review 102; Karen Schultz, ‘Future Citizens or Intergenerational Aliens? Limits of Australian Constitutional Citizenship’ (2012) 21(1) Griffith Law Review 36. For a more theoretical discussion of exclusion and the Constitution: Margaret Davies, ‘Exclusion and the Constitution’ (2000) 25(2) Australian Journal of Legal Philosophy 298; Sandra S Berns, ‘Law, Citizenship and the Politics of Identity: Sketching the Limits of Citizenship’ (1998) 7 Griffith Law Review 1 regarding the constructing of Australian identity through law and other methods, focusing on the exclusionary characteristics of the defining elements in the decades shortly after federation. For another example of the common characterization of aliens as ‘outsiders’: Belinda Wells, ‘Aliens: The Outsiders in the Constitution’ (1996–97) 19 University of Queensland Law Journal 45. See Mary Crock, ‘Defining Strangers: Human Rights, Immigrants and the Foundations for a Just Society’ (2007) 31 Melbourne University Law Review 1053 regarding the extension of these ideas of exclusion, and their effects, into the human rights arena.

36  However, note the early history from Roman to Norman times in England, where these categories had limited relevance to most of the population: Ann Dummett and Andrew Nicol, Subjects, Citizens, Aliens and Others: Nationality and Immigration Law (Weidenfeld and Nicolson 1990) chs 1, 2.

37  I do not assess the accuracy of the statements regarding the changes to subject status contained in the majority reasoning, except to note that, while the common law had been affected by legislation prior to federation, as noted above, the law regarding subject status by birth remained common law until after federation. See also McHugh J’s judgment for an alternative reading of the historical record regarding subject status and the relevance of the place of birth. Justice McHugh, in dissent, concluded that the rule he saw in the British history and later developments was that birth in the realm meant a person could not be an alien. The distinction between McHugh J’s reasoning and that of the majority highlights the possibility of different interpretations of the same legal materials: see McHugh J’s summary in Singh v Commonwealth (2004) 222 CLR 322, 342–43. For further discussion of this case: Peter Prince, ‘We are Australian—The Constitution and Deportation of Australian-born Children’ (Department of the Parliamentary Library, Canberra, Research Paper No 3 2003-04); Sydney Tilmouth, ‘Citizenship as a Constitutional Concept: Singh v Commonwealth of Australia and Rasul v Bush, President of the United States’ (2005) 26 (May) Australian Bar Review 193; Michelle Foster, ‘Membership in the Australian Community: Singh v The Commonwealth and its Consequences for Australian Citizenship Law’ (2006) 34 Federal Law Review 161.

38  See the discussion of this principle in David A Wishart, ‘Allegiance and Citizenship as Concepts in Constitutional Law’ (1986) 15 Melbourne University Law Review 662.

39  Singh (n 37) 341 (Gleeson CJ), 384 and see at 391, 395, 400 (Gummow, Hayne and Heydon JJ), 415, referring to British, international law and ‘the United States model’ at 415–16 (Kirby J).

40  (1982) 151 CLR 101. For further discussion of this case: Sangeetha Pillai, ‘Non-Immigrants, Non-Aliens and People of the Commonwealth: Australian Constitutional Citizenship Revisited’ (2014) 39(2) Monash University Law Review 568, 589; Crock and Berg (op cit) 56.

41  Pochi v MacPhee (1982) 151 CLR 101, 104 (Gibbs CJ).

42  Australian Citizenship Act 1948 (Cth) s 15 as in force at that time.

43  The date at which the change in the monarch occurred is complicated by the multiple pieces of legislation that changed the official style and title of the Australian monarch, and the date at which the change in the monarch applied at both federal and State levels.

44  Nolan v Minister of State for Immigration and Ethnic Affairs (1988) 165 CLR 178, 186 (Mason CJ, Wilson, Brennan, Deane, Dawson and Toohey JJ).

45  Chu Keng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, 10, 25–26, 45, 64. See Mary Crock and Laurie Berg, Immigration, Refugees and Forced Migration (The Federation Press 2011) 66–67.

46  Section 45 makes vacant the place of a person subject to the disqualifications in s 44.

47  Adrienne Millbank, ‘Dual Citizenship in Australia’ (Department of the Parliamentary Library, 28 November 2000) 5–6. The 2016 Commonwealth census revealed that almost one half of the Australian population had been born overseas or had at least one overseas-born parent: Australian Bureau of Statistics, ‘Census reveals a fast changing, culturally diverse nation’ (Media Release, 27 June 2017) 1 <http://www.abs.gov.au/ausstats/abs@.nsf/lookup/Media%20Release3> accessed 28 September 2017. Given the approach of jus sanquinis and jus soli which affect acquisition of citizenship around the world, these results mean that a large proportion of the Australian population may be foreign nationals or eligible to take up foreign nationality.

48  (1992) 176 CLR 77.

49  ibid 108 (Mason CJ, Toohey and McHugh JJ), 113 (Brennan J), 128 (Deane J), 131 (Dawson J), 139 (Gaudron J).

50  ibid, 108 (Mason CJ, Toohey and McHugh JJ), 113–14 (Brennan J), 132 (Dawson J).

51  By contrast, Australian citizenship can and has been revoked with respect to dual nationals, see for example in the case of Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Ame (2005) 222 CLR 439. For the current bases of revocation: Australian Citizenship Act 2007 (Cth), ss 34–36 and see discussion in Pillai, ‘The Rights and Responsibilities of Australian Citizenship’ (2014) 37(3) Melbourne University Law Review 736, 754–58.

52  (n 51). For further discussion of this case: Peter Prince, ‘Mate! Citizens, Aliens and “Real Australians” – the High Court and the case of Amos Ame’ (Parliamentary Library 2005) <http://www.aph.gov.au/binaries/library/pubs/rb/2005-06/06rb04.pdf> accessed 28 September 2017.

53  Papua New Guinea Independence (Australian Citizenship) Regulations 1975 (Cth), reg 4, made under Papua New Guinea Independence Act 1975 (Cth), s 6. The focus of the reasoning in that case was the validity of the Australian law at issue, but factually and politically it interacted with PNG legislation and policy: Constitution of the Independent State of Papua New Guinea 1975 (PNG), s 64 regarding dual citizenship.

54  Ame (n 51) 458–59 (Gleeson CJ, McHugh, Gummow, Hayne, Callinan and Heydon JJ).

55  See, eg, Pochi (n 41) 85 (Gibbs CJ); Re Patterson; Ex Parte Taylor (2001) 207 CLR 391, 400 (Gleeson CJ), 410 (Gaudron J).

56  Revised Explanatory Memorandum at 1. See Australian Citizenship Amendment (Allegiance to Australia) Act 2015 (Cth).

57  Sections 33AA, 35, 35A respectively.

58  cf British Nationality Act 1981 (UK) c 61, s 40(4A) inserted by the Immigration Act 2014 (UK), c 22, s 66(1).

59  Section 4.

60  Helen Irving and Rayner Thwaites, ‘Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 (Cth)’ (2015) 26 Public Law Review 143, 145.

61  Singh (n 37) 378–80; Hwang v Commonwealth (2005) 222 ALR 83, 87–89, discussed in: Elisa Arcioni, ‘That Vague but Powerful Abstraction: The Concept of ‘the People’ in the Australian Constitution’ Paper delivered at the 2009 constitutional conference <http://www.gtcentre.unsw.edu.au/events/2009-constitutional-law-conference> and available at SSRN <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2393761> 6; Helen Irving, ‘Still Call Australia Home: The Constitution and the Citizen’s Right of Abode’ (2008) 30 Sydney Law Review 133. But cf Koroitamana v Commonwealth (2006) 227 CLR 31, 42, 46 (Gummow, Hayne and Crennan JJ).

62  Leslie Zines, ‘The Sovereignty of the People’ in Michael Coper and George Williams (eds), Power, Parliament and the People (The Federation Press 1997) 91, 91.

63  Elisa Arcioni ‘Identity at the Edge of the Constitutional Community’ in Fiona Jenkins, Mark Nolan, Kim Rubenstein (eds), Allegiance and Identity in a Globalised World (CUP 2014) 31–51.

64  See also Elisa Arcioni ‘Excluding Indigenous Australians from “The People”: A Reconsideration of Sections 25 and 127 of the Constitution’ (2012) 40(3) Federal Law Review 287–315; Elisa Arcioni ‘Section 53 of the Constitution: An Overlooked Reference to the Constitutional People’ (2013) 87(11) Australian Law Journal 784–92.

65  Elisa Arcioni ‘The Core of the Australian Constitutional People—“The People” as “The Electors” ’ (2016) 39(1) University of New South Wales Law Journal 421–49; cf Elisa Arcioni ‘Tracing the Ethno-cultural or Racial Identity of the Australian Constitutional People’ (2016) 15(2) Oxford University Commonwealth Law Journal 173–95.

66  For discussion of that history: Williams (n 8) and see Elisa Arcioni ‘Historical Facts and Constitutional Adjudication: The Case of the Australian Constitutional Preamble’ (2015) 30 Giornale di Storia Costituzionale [Journal of Constitutional History] 107–24.

67  See ss 8, 30.

68  Rowe v Electoral Commissioner (2010) 243 CLR 1, 19.

69  Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.

70  See Mulholland v Australian Electoral Commission (2004) 220 CLR 181; Day v Australian Electoral Officer for the State of South Australia [2016] HCA 20.

71  Attorney-General of the Commonwealth; ex rel McKinlay (1975) 135 CLR 1; McGinty v Western Australia (1996) 186 CLR 140; Langer v The Commonwealth (1996) 186 CLR 302; Mulholland (n 70).

72  (2007) 233 CLR 162.

73  Rowe (n 68).

74  For discussion of how the reasoning in those cases, like the reasoning in the allegiance cases, relied on legislative indications of constitutional membership, see: Elisa Arcioni, ‘Democracy and the Constitution: The People Deciding the Identity of “the People” ’ in Glenn Patmore and Kim Rubenstein (eds), Law and Democracy: Contemporary Questions (ANU Press 2014) 11.

75  Roach (n 72) 174–75, 176–77 (Gleeson CJ), 199 (Gummow, Kirby and Crennan JJ); Rowe (n 68) 18–20 (French CJ), 48, 57 (Gummow and Bell JJ), 112 (Crennan J); cf 93 (Heydon J, in dissent).

76  For example, religion: Roach (n 72) 174–75 (Gleeson CJ).

77  Rowe (n 68) 93. See also Re Minister for Immigration and Multicultural Affairs; ex parte Te (2002) 212 CLR 162, 172 (Gleeson CJ).

78  See Audrey Macklin, ‘Citizenship Revocation, the Privilege to Have Rights and the Production of the Alien’ (2014) 40 Queen’s Law Journal 1, 30–33 for a discussion of these same arguments in the Canadian context, by reference to Sauve v Canada (Chief Electoral Officer) [2002] 3 SCR 519, a case in turn referred to in Gleeson CJ’s judgment in Roach: (n 72) 177–78.

79  Constitution Alteration (Establishment of Republic) Bill 1999 (Cth), sch 2, ss 38, 39 regarding changes to s 117.

80  Constitution Alteration (Establishment of Republic) Bill 1999 (Cth), sch 2, s 41.

81  See generally: Megan Davis and George Williams, Everything you Need to Know About the Referendum to Recognise Indigenous Australians (NewSouth 2015).

82  For discussion of the interplay of amendment and interpretation: Michael Coper, ‘Judicial Review and the Politics of Constitutional Amendment’ in Rosalind Dixon and George Williams (eds), The High Court, the Constitution and Australian Politics (CUP 2015) 38; Michael Coper, ‘The People and the Judges: Constitutional Referendums and Judicial Interpretation’ in Geoffrey Lindell (ed), Future Directions in Australian Constitutional Law: Essays in Honour of Professor Leslie Zines (The Federation Press 1994) 73; Anne Twomey, ‘Constitutional Alteration and the High Court: The Jurisprudence of Justice Callinan’ (2008) 27 University of Queensland Law Journal 47.