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Rubenstein, Kim --- "Citizenship and the Centenary -- Inclusion and Exclusion in 20th Century Australia" [2000] MelbULawRw 24; (2000) 24(3) Melbourne University Law Review 576


Citizenship And The Centenary — Inclusion And Exclusion In 20th Century Australia

KIM RUBENSTEIN[*]

[This article looks at citizenship as both a legal formal notion and as a normative notion. While the concept of the legal citizen is primarily concerned with the formal status of individuals in the community (compared to permanent and temporary residents), that of the normative citizen looks to broader concepts, speaking of membership regardless of a person’s formal status. The consequence of these different meanings is that citizenship has been expressed in both inclusive and exclusive ways throughout the past century. The article demonstrates this by considering the beginnings of citizenship in Australia before the legal status was formalised, then the first 50 years of the formal status, and finally the legislative and common law expressions of citizenship today. It argues that the confused and often contradictory messages of citizenship require us to be more mindful in the 21st century of the relationship between the formal and normative meanings of the term.]

INTRODUCTION

An explosive growth of literature in Australia and internationally on citizenship issues has marked the latter part of the 20th century.[1] The analysis spans many disciplines, including history, politics, law, education, feminism and sociology. As a result, a wealth of debate on the subject has been placed on the public record.

Throughout the 20th century Australian federal government committees and Parliament have debated citizenship.[2] Most recently, in February 2000 the Australian Citizenship Council, established by the Coalition Government in 1998, issued a report, Australian Citizenship for a New Century.[3] The Council’s broad mission was to consider how concepts of citizenship can best serve Australia and Australians.

The phrase ‘concepts of citizenship’ is integral to the theme of this article. Indeed, it applies to the interdisciplinary literature covering citizenship throughout the past century. Different discussions occur when citizenship is conceived as a legal formal notion,[4] as opposed to citizenship as a normative concept.[5] The legal formal notion is primarily concerned with the legal status of individuals within a community. For instance, in Australia citizens are contrasted with permanent residents, temporary residents and unlawful non-citizens.[6] Legal issues associated with the formal status include the acquisition and loss of citizenship; the criteria for citizenship by grant; dual or multiple citizenship; and discrimination based upon citizenship status. The latter issue of discrimination and the consequences of this upon one’s status in Australia are developed further in this article. In fact, tensions also exist within the law, with inconsistent legislation discriminating between citizens and non-citizens, and in the inconsistent manner in which the High Court has developed the common law of citizenship.

The normative notion of citizenship is not as concerned with these legal questions; rather, it sees membership as becoming ‘increasingly universalistic and open-ended’.[7] Citizenship is discussed in non-legal, normative frameworks in a variety of ways, primarily in terms that look to the material circumstances of life within the polity, and notably to questions of social membership and substantive equality.[8] In this way the normative notion is much broader than the legal notion. It is a progressive project which is not just concerned with legal citizens, but with persons and the way persons should act and be treated as members of a community. In fact, there is a disjuncture between the legal notion, which is an exclusive one, and the normative notion, which seeks to be inclusive and universal.[9] To that end, I will be using the terms ‘exclusive’ to refer to the legal notion of citizenship and ‘inclusive’ and ‘universal citizenship’ to distinguish the normative concepts of citizenship, thereby highlighting the tensions that exist.

This tension is apparent in the Australian Citizenship Council’s report when it contrasts small ‘c’ citizenship and big ‘C’ Citizenship:

We must recognise the difference between citizenship in the legal sense and citizenship in the broader sense. That is why throughout this report, when the terms ‘citizen’ and ‘citizenship’ are used with a small ‘c’ they describe citizenship in the broader sense of civic value of our society, relevant to all the people who live here, not simply those who, under the Australian Citizenship Act 1948 (Cth), have the legal status of Citizens.[10]

So small ‘c’ citizenship represents the inclusive, normative view of the term whereas big ‘C’ Citizenship identifies the contrasting exclusive, legal understanding of the word. Yet the report does not discuss whether this distinction is an acceptable one. Is the identification of the distinction between small ‘c’ and big ‘C’ citizenship as simple and appropriate as the report suggests in its lack of attention to the matter?

The distinction itself between formal legal citizens and fellow-person citizens reflects something fundamental about the nature of citizenship and membership of the Australian community. As Bosniak argues, ‘questions concerning citizenship’s threshold and its substantive character are, in fact, deeply interwoven.’[11] That is, the legal questions impact fundamentally upon the normative evaluation of citizenship. Moreover, the distinctions that exist within a political community, based upon citizenship, reach ‘deep into the heart of the national political community, and profoundly affect the nature of relations among those residing within.’[12]

Within Australia, the difference between the exclusive and universal meanings of citizenship is also connected to citizenship’s legal history and evolution.[13] A failure to engage properly in informed debate about citizenship has contributed to the difference between the formal legal status of citizenship (and inconsistencies therein) and the broader, supposedly more inclusive, notion of membership of the Australian community. Part II of this article assesses this by looking at the historical evolution of the legal foundation of citizenship and its influence on citizenship in the past century. Part III describes how law has failed to provide consistent, clear messages about membership of the community, as expressed through legislation and the common law, and continues to evidence tension between citizenship as exclusion and citizenship as inclusion. Finally, the article makes suggestions on how better to prepare Australia for the new century’s challenges regarding membership of the domestic and international community.

II THE HISTORICAL UNDERPINNINGS OF AUSTRALIAN CITIZENSHIP

A The Beginnings of Citizenship

The Australian Constitution (‘Constitution’), which entered into force in 1901, is the formal legal starting point for understanding citizenship. However, ‘citizenship’ is largely omitted from its terms, a situation influenced by various factors. As colonies of the United Kingdom, Australians were obviously legally British subjects at the beginning of the 20th century. It might be imagined that Australian citizenship was not of concern to those drafting the Constitution because citizenship was missing from our legal lexicon. However, that is far from the case.[14] Citizenship concerned the drafters acutely and they made a conscious effort to exclude the term from Australia’s foundational legal document.[15]

John Quick, a delegate to the Constitutional Conventions and later commentator with Robert Garran on the Constitution, sought to include a definition of Australian citizenship when he argued that the Commonwealth should have the power, under what is now s 51 of the Constitution, over Commonwealth citizenship.[16] Discussion of citizenship had also occurred when debating what is now s 117 of the Constitution, which is concerned with discrimination between residents of the various States.[17] However, the drafters of the Constitution resolved to leave the legal concept of the Australian citizen vague and undefined, as they feared that all attempts to define citizenship would land them in ‘innumerable difficulties’.[18] The debate over Quick’s proposal largely concerned the problem of categorisation: how to deal with people of other races, particularly Chinese and Indian residents, who had originated in other British colonies? If ‘citizens’ were defined as subjects of the Queen, then not only would Chinese people from Hong Kong be treated differently from those from other parts of China, but they would also be able to claim citizenship of the Commonwealth.[19] As Dr Cockburn, a South Australian delegate to the Convention, emphasised, ‘[w]e desire always to deal with Asiatics on broad lines, whether they are subjects of the Queen or not; and in South Australia, and, I believe, other colonies, those lines of distinction are obliterated.’[20]

The historical and social evolution of membership of Australia from the late 1850s lays the foundations of the theme running through this article — exclusion and inclusion — and is still relevant to notions of citizenship today. From the 1850s onwards, all the colonies were in agreement about restricting Asian, particularly Chinese, immigration. Anti-Chinese sentiment developed during the gold rush era, when many Chinese men arrived on contracts formed through agents in China to replace the labour lost to the goldfields. By 1859 there were 42 000 Chinese people in Victoria, which amounted to a ratio of about one in 12 to 14 Europeans.[21] The Victorian Legislative Council established a Select Committee on Chinese Immigration in 1857 to frame a Bill to control the flood of Chinese immigration, resulting in ‘An Act to Regulate the Residence of Chinese Population in Victoria’.[22] Twenty-three years later these concerns were voiced at the Australasian Inter-Colonial Conference of December 1880 – January 1881. A report to the British government at the conclusion of the conference stated: ‘In all the six Colonies a strong feeling prevails in opposition to the unrestricted introduction of Chinese, this opposition arising principally from a desire to preserve and perpetuate the British type in the various populations.’[23]

By 1865 Victoria had on its statute books the Chinese Immigrants Statute 1865 (Vic) and, after the Inter-Colonial Conference of 1880–81, The Chinese Act 1881 (Vic) was enacted. The Act imposed a £10 entry tax on every person arriving in Australia, and a restriction of one immigrant for every 100 tons of the vessel. In 1881 in New South Wales, Premier Sir Henry Parkes suggested even further restrictions be imposed on entry, for example, onerous quarantine provisions and restrictions on the ability of non-citizens to hold real property. Concerned about the nature of citizenship, Parkes claimed it was better to ‘prevent the arrival of the immigrants than to discourage or harass them after they are arrived’.[24] Unless you ‘permit them to have the same rights and privileges as you possess to the full measure of citizenship, then ... you are simply supporting them in coming here in order to establish a degraded class ... an eternal curse to the country’.[25]

By 1888 crisis enveloped the issue. In 1887 Chinese Commissioners appointed by the Emperor reported back on conditions among Chinese emigrants in various colonies, including Australia. They identified the entry tax as a discriminatory measure directed against Chinese only, and saw this as a clear breach of Anglo-Chinese treaties. This annoyed the Australians and embarrassed the British government, leading the British to request full details of the law relating to Chinese immigrants.[26]

The public and political debate surrounding the issues was also extreme. On 27 April 1888 the ‘Afghan’ arrived in Hobsons Bay, Victoria. The ship was refused entry because some people aboard allegedly had fraudulent papers. This was despite the offer by the ship’s master, George Roy, to pay the Collector of Customs £10 for every immigrant on board, as provided by s 3 of The Chinese Act 1881 (Vic). Moreover, those entitled to land were denied entry. The ship was then forced to sail to New South Wales.[27] Parkes attempted to use this to his political advantage by seeking to set aside the existing law and to introduce a new law that would indemnify his government against legal proceedings (hauntingly mirrored in recent Australian legislation),[28] raising the tonnage restrictions from 100 to 300 tons and the entry tax from £10 to £100. However, he was unable to pass the legislation through the Legislative Council due to insufficient time.

One of the people aboard the ‘Afghan’, Chung Teong Toy, disembarked the boat in New South Wales and returned to Victoria in order to bring an action in the Victorian Supreme Court against the Collector of Customs for Victoria for preventing him from landing in Victoria. The case dealt with foundational legal concepts of sovereignty and citizenship. The majority of the Full Court of the Victorian Supreme Court found for the plaintiff, holding that the prerogative to exclude aliens did not exist as part of responsible government in Victoria.[29] Accordingly, the Victorian government had no power to preclude the entry of aliens into the colony. However, on appeal to the House of Lords, the Privy Council could not assent to the proposition that an alien refused permission to enter British territory could, in an action in a British Court, compel the decision of such matters involving ‘delicate and difficult constitutional questions affecting the respective rights of the Crown and Parliament, and the relations of this country to her self-governing colonies’.[30] One of the most important devices of citizenship, the right to exclude aliens, was set at this early stage.

This history was the background to the discussions on citizenship that took place during the Constitutional Conventions and to the framers’ decision not to define citizenship in the Constitution, which also mirrored the framers’ agreement that there should be Commonwealth power to legislate for those aliens already in the country. Issues regarding membership were definitely a national issue, of concern to the whole Commonwealth, not just to the individual colonies. In fact, one piece of legislation introduced into the first Commonwealth Parliament was the Immigration Restriction Bill 1901 (Cth). The debate over the Bill resembles the debates over the question of citizenship in the Convention Debates. Alfred Deakin was at pains to point out that the Bill involved touching ‘the profoundest instinct of individual or nation — the instinct of self-preservation — for it is nothing less than the national manhood, the national character, and the national future that are at stake.’[31] Moreover, he referred to the Constitution as ‘contain[ing] within itself the amplest powers to deal with this difficulty [immigration] in all its aspects.’[32] This fear and antagonism towards aliens, such as Chinese immigrants, contributed to a particularly ‘Australian’ sense of nationhood.

As a result of these historical, social and political realities of the 1850s and onwards, the Constitution does not provide any literal guidance to the legal meaning of citizenship in Australia. This lack of definition was also a clear sign of the tension that would continue to evolve throughout the 20th century between the notions of capital ‘C’ Citizenship as exclusion and small ‘c’ citizenship as inclusion. The prelude to the century gave greater weight to the exclusive notion over the normative inclusive concept of citizenship.

B The First 50 Years: Notions of ‘citizenship’ before ‘Citizenship’

In the first part of the 20th century, there was active discussion about Australian citizenship, even though it was not yet a formal legal term.[33] As Irving argues, citizenship was a term of popular usage ‘in speeches, in the press, in the rules and charters of organisations, and in debates about political entitlements’.[34] This notion of citizenship ‘entailed commitment, belonging, and contribution’.[35] This reflects the normative, universal notion of citizenship then in use. However, in law the major distinction of membership in Australia for the first 50 years of the Commonwealth was between British subjects and aliens. At common law, a person’s formal legal status was determined by their allegiance to the monarch, whether by birth or through naturalisation.[36] Even so, David Dutton has explained that a

de facto administrative Australian citizenship operated during the period which arose from the necessity of distinguishing between those British subjects who were permanent residents and belonged to the Commonwealth (in the sense that they could not be deported), and those British subjects who were merely visitors or who were yet to reside in Australia long enough to be regarded as belonging.[37]

Thus there were three forms of membership — those who were British subjects permanently residing in Australia, those who were British subjects and temporarily in Australia, and those who were not British subjects and were aliens. This broader distinction between aliens and British subjects, which framed Australian citizenship in the first 50 years of the 20th century, has continued to this day with the current distinction between citizen and non-citizen. The preference for British subjects has disappeared relatively recently.[38]

Aliens are subject to Commonwealth control by virtue of s 51(xix) of the Constitution, which refers to ‘naturalization and aliens’. This head of power has been used by the government throughout the 20th century, and has been interpreted by the High Court, to give the Commonwealth almost complete control[39] over laws relating to aliens and, now, ‘non-citizens’.[40] This has been an essential device of exclusion, which existed well before the legal term ‘citizenship’ came about. In fact, the difficulties in the distinction between membership and exclusion were reflected by the High Court’s treatment of the area in the first 50 years before citizenship evolved as a legal term. In a range of important and early High Court decisions, we see the first legal expressions of citizenship as exclusion.[41]

What do you do with people who come to Australia temporarily and then settle permanently? Would they always be liable to deportation and subject to the Commonwealth’s power over immigration, or was there a period after which they were no longer subject to the Commonwealth’s immigration power? What of people born in Australia who left and wanted to return? Several High Court cases will be highlighted to show the difficulties consistently experienced in determining where the boundaries of membership lay.

Within the first 10 years of the Commonwealth’s existence the Court dealt with some of these issues in Potter v Minahan.[42] Minahan was born in Australia to a white mother and a Chinese father. He left Australia with his father at the age of five, and then returned when he was 31. He argued that he was not an immigrant and so was not subject to the Immigration Restriction Act 1901 (Cth). Minahan was successful and a statement by O’Connor J reinforces early expressions of the rights of membership:

A person born in Australia, and by reason of that fact a British subject owing allegiance to the Empire, becomes by reason of the same fact a member of the Australian community under obligation to obey its laws, and correlatively entitled to all the rights and benefits which membership of the community involves, amongst which is a right to depart from and re-enter Australia as he pleases without let or hindrance unless some law of the Australian community has in that respect decreed the contrary.[43]

Yet Isaacs J, in dissent, did not accept birth in Australia as leading to the conclusion that one was a member of the community:

The ultimate fact to be reached as a test whether a given person is an immigrant or not is whether he is or is not at that time a constituent part of the community known as the Australian people. Nationality and domicil are not the tests; they are evidentiary facts of more or less weight in the circumstances, but they are not the ultimate or decisive considerations.[44]

Higgins J, also in dissent, displayed the difficulties in not having a notion of citizenship:

It is urged that there is an Australian species of British nationality; that a man born in Australia is an ‘appendage to the soil’; that when a man goes back to the land of his birth he is not ‘immigrating’ ... Throughout the British Empire there is one King, one allegiance, one citizenship. I use this last word, not in the Roman or in the American sense, but only because there is no suitable abstract noun corresponding to the word ‘subject’ ... I know of no principle of British law to the effect that a man has some peculiar right to resort to one particular part of the Empire as distinguished from other parts.[45]

The dissenting judgments of Isaacs and Higgins JJ were later upheld by a majority of the High Court in 1925 in Donohoe v Wong Sau,[46] where Isaacs J looked at Wong Sau’s language, upbringing, education, and sentiment, and decided that none of them indicated she was part of the Australian community, despite her birth in Australia.[47]

The question of individuals who were not born in Australia, yet who sought protection from deportation due to their becoming part of the Australian community, was raised poignantly in the 1920s. In Ex parte Walsh; In re Yates[48] Knox CJ relied on the decision in Potter v Minahan in concluding that the scope of the immigration power applied equally to questions of entry to, and deportation from, Australia.[49] In his view, ‘a person who has originally entered Australia as an immigrant may, in course of time and by force of circumstances, cease to be an immigrant and becomes a member of the Australian community.’[50] Walsh had been born in Ireland and migrated to Australia 22 years later where he remained for the next 32 years. In Knox CJ’s view, if he had sought to enter the Commonwealth on his return from an overseas visit, the immigration laws could no longer apply to him, and so the deportation order was similarly invalid.[51] A contrasting exclusive notion of membership was most explicitly expressed by Isaacs J:

Immigration ... is not obliterated for ever by the mere passage across the frontier, nor by the momentary leap over a barrier which magically and instantaneously transforms a Hindoo or a Kanaka, for example, into an Australian. If such were its meaning, the cherished national policy of Australia would indeed be in peril ... Until an immigrant, whenever he arrives in Australia, has settled down so as in fact to have his ‘home’ in Australia as a home which he finally adopts without intention of ever leaving Australia, he is still an immigrant, whose ‘movement’ of immigration is uncompleted.[52]

Isaacs J then included a hypothetical scenario in his judgment, which also reflects greatly his view on the place of citizenship and the Commonwealth’s power over non-citizens. He took as an example an Italian man who arrives in Australia in 1925 and enters under the immigration power:

He settles and perhaps marries, and so acts that he becomes domiciled within a year, and is so satisfied with his surroundings that he abandons all intention of leaving Australia. If of foreign nationality he becomes naturalized so as to enjoy certain advantages which an alien cannot have. Australia is his ‘home’ as far as he can make it so. It is said he is incorporated into the Australian community. Then he begins activities designed to establish anarchical and terroristic or treasonable societies. Parliament retrospectively enacts that all persons immigrating as from 1924 shall be deportable as prohibited immigrants, if they are found engaging in such practices. Is it the law of the Constitution that he is immune?[53]

In Isaacs J’s view, the answer was vehemently ‘no’ — ‘[o]nce an immigrant always an immigrant’.[54] In essence, this view clearly created different levels of membership — those born in Australia being the exclusive members (although Isaacs J did not even consider birth a conclusive basis for membership), and those who migrated to Australia, who could never be full members in his view. Isaacs J later referred in his judgment to those who become naturalised as ‘citizens’[55] and so, too, did Starke J refer to those ‘whom I may call citizens of the Commonwealth or part of the community known as the Australian people’.[56] Not only was the terminology difficult, so was the outcome. Knox CJ, Higgins and Starke JJ agreed that the immigration power did not authorise Parliament to legislate for persons who have made Australia their permanent home,[57] yet those judges themselves were not all part of the majority decision in the matter.

The confused approach of the Court to these issues was still evident over 20 years later in Koon Wing Lau v Calwell.[58] This case involved 38 plaintiffs who sought release from custody pending deportation, and an injunction against the deportation itself. A clearer sense of the use of the aliens head of power[59] can be seen in this case, yet without resolve on the issues of absorption into the Australian community and who, in fact, can be regarded as part of the Australian community. In Latham CJ’s view, ‘[n]o person simply by his own act can make himself a member of the community if the community refuses to have him as a member.’[60] He then followed Isaacs J’s earlier opinion that the Commonwealth Parliament could validly deport at any time, persons who came into Australia at any time as immigrants, based on whatever factors it liked: ‘age, sex, race, nationality, personal character, occupation, time of arrival.’[61] Williams J disagreed on philosophical grounds about the meaning of immigration and membership:

[A] law which allows a person to enter and stay in Australia indefinitely but prevents him from ever becoming a member of the Australian community is not a law with respect to immigration, because the essence of immigration is the entry by a person into a country in order to make that country his permanent home. A law with respect to immigration is therefore a law which regulates the right to immigrate, so that on compliance with its conditions the immigrant becomes a member of a new community and no longer an immigrant.[62]

However, Williams J’s view is in essence one of the minority views expressed in the first 50 years of the century. The majority of views echoed the reasoning explained earlier for not defining citizenship in the Constitution. There were ‘innumerable difficulties’ in dealing with issues of membership of the Australian community as Isaacs originally argued in the Convention Debates[63] and continued to express through his judgments above. These difficulties fundamentally reflected upon citizenship as exclusion in the first half of the 20th century and a desire to maintain a specific sense of the ‘proper’ boundaries of the Australian community.

C The Australian Citizenship Act 1948 (Cth) and the Latter 50 Years of the 20th Century[64]

Australia has only recently commemorated the 50th anniversary of the Australian Citizenship Act 1948 (Cth).[65] Notwithstanding this short history, it would be fair to assume that once Parliament decided to define Australian citizenship in a legislative framework, a clear meaning would evolve. However, this has not been the case. The Australian Citizenship Act 1948 (Cth) offers a definition of citizenship stripped bare. While the Act tells us who is a citizen and who can lose their citizenship, it tells us nothing about the legal consequences of citizenship.[66] Yet, the definition of citizenship in itself, and some of the matters dealt with in the Act, reflect some more fundamental aspects of membership of the community. As Karen Slawner reminds us, the ‘[l]egal definitions of citizenship always incorporate what is considered to be desirable activity.’[67]

Although the definition of an Australian citizen has changed since the inception of the Act in 1948,[68] the present formulation is reasonably clear. A person can become an Australian citizen:

  1. by birth, if at the time of the person’s birth in Australia, at least one parent is an Australian citizen or an Australian permanent resident;[69]
  2. by adoption, if adopted by an Australian citizen;[70]
  3. by descent, if a parent is an Australian citizen and registers the child’s name at an Australian consulate within 18 years of the birth;[71] or
  4. by grant of citizenship.[72]

While transparent, two significant issues of exclusion arise from the definition as it presently stands. The previous nationality by birthplace rule was changed on 20 August 1986. The nationality by birthplace, or jus soli, principle was abandoned for a specific reason. The new rule limited citizenship to those born in Australia to a parent who was an Australian citizen or permanent resident.

The immediate catalyst was Kioa v West, where it had been argued that the child of the parents, who were temporary entrants and subject to a deportation order, was an Australian citizen and was therefore entitled to natural justice.[73] While this view was not adopted by the court,[74] it was enough to encourage a change in the legislation.[75] The government was keen to prevent the abuse of citizenship to obtain an immigration advantage.[76] This concept was further supported in the Australian Citizenship Council report which stated:

[I]n an international environment where population movements are increasing exponentially, and where Australia is seen by many as a desirable destination, it would be inappropriate to allow migration laws to be circumvented through the acquisition of Australian Citizenship status by children born in Australia to temporary or illegal entrants. Such an approach would compromise Australia’s migration program as well as being inequitable to the many thousands of people who apply to migrate to Australia every year through proper channels.[77]

This is a transparent use of citizenship as a device of exclusion. It is not about including everyone born in Australia as a member of the community, but rather determining first and foremost whom we want and whom we do not want to be part of the Australian community.[78]

Another transparent area of the Act which asserts whom we want as a member of the Australian community is the section relating to the grant of Australian citizenship.[79] This is within the Minister’s discretion and is based upon a variety of factors that the Minister must take into account. These matters incorporate ‘desirable activity’ into the definition of citizenship.[80] For instance, the applicant must be a permanent resident, over 18, and able to understand the nature of the application. This reflects the importance placed upon a conscious acceptance or consent to becoming a member of the community.[81] In addition, the person has to have lived in Australia for a period of two years in the five years preceding the application, and this includes a period of 12 months in the two years before the application.[82] This emphasises the value of residence in a community as an expression of membership. Also, the person has to be of good character, have a basic knowledge of English and an adequate knowledge of the responsibilities and privileges of Australian citizenship. This reflects further characteristics of whom we want to include as fellow members — people whom we trust and respect, people with whom we can communicate, and people who will understand what we expect of them as fellow members. Moreover, the applicant must be likely to reside or continue to reside in Australia, or maintain a close and continuing association with Australia.[83] Each of these factors tells us something about citizenship as a legal status representing a form of membership of the community.[84] The Australian Citizenship Council reviewed these core criteria in its report, Australian Citizenship for a New Century, and no major substantive changes were recommended.[85]

Moreover, the necessity for adequate knowledge of the responsibilities and privileges of Australian citizenship indicates that there are, in fact, legal consequences of citizenship. However, the precise responsibilities and privileges are not explained by the Act. In 1993, however, the preamble to the Act was changed, and it also gives us a sense of what citizenship means:

Australian citizenship represents formal membership of the community of the Commonwealth of Australia; and
Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, whilst respecting their diversity; and
Persons granted Australian citizenship enjoy those rights and undertake to accept these obligations by pledging loyalty to Australia and its people, and by sharing their democratic beliefs, and by respecting their rights and liberties, and by upholding and obeying the laws of Australia.[86]

This preamble speaks of citizenship primarily as a concept of inclusion. Inclusive terminology is used by referring to a ‘common bond’, while ‘respecting ... diversity’. While it assists, no doubt, in determining in principle some of the consequences of citizenship, there is no further explanation within the Australian Citizenship Act 1948 (Cth). The preamble has little legal consequence. In essence, preambles are only of legal value when the words in a statute are unclear, as applied to the subject matter of an Act, or capable of more than one meaning.[87] In those cases the preamble may assist in the interpretation of the statute. Moreover, the recital of facts in a preamble does not mean that the recitals are conclusive evidence of those facts — they are prima facie evidence only.[88]

Another area within the Act which further reflects upon philosophical approaches to citizenship is s 17, with its bearing on dual citizenship. Section 17 mandates that an Australian citizen who becomes a citizen of another country ‘by doing any act or thing, the sole or dominant purpose of which; and the effect of which; is to acquire the nationality or citizenship of a foreign country’[89] ceases to be an Australian citizen. This provision works by operation of law and takes effect when the Australian citizen acquires the new citizenship, although the practical consequences of it may not be readily apparent.[90] This section implies that acquisition of another country’s citizenship reflects disloyalty to Australia. It concentrates upon citizenship as a singular allegiance. It states that citizenship is about undivided exclusive loyalty.

This is inconsistent with other aspects of the Act as it currently stands. For example, there is no requirement that a person who applies for citizenship by grant relinquish their former citizenship.[91] Therefore, there are many Australian citizens who are also citizens of other countries. The sentiment is also inconsistent with broader notions of membership in Australian society. For instance, the support for multiculturalism in Australia by various governments reflects a belief that people can have connections to more than one country without those connections undermining the Australian identity.[92] In fact, multiculturalism reinforces the value of diversity as does the Act’s preamble. Section 17 was recently reviewed by the Australian Citizenship Council,[93] which recommended that s 17 be repealed so that Australian citizens over the age of 18 do not lose their Australian citizenship on the acquisition of another citizenship.[94] No government response to this recommendation has yet been announced.

The philosophical messages in the Australian Citizenship Act 1948 (Cth) connected with the legal meaning of citizenship are not entirely clear. There are strong messages that citizenship is a tool for immigration control and exclusion. There is support for citizenship as an expression of singular, exclusive loyalty to Australia for Australian-born citizens, but not for citizens by grant. Moreover, when looking at citizenship in practical terms in the way it affects the lives of the citizenry, the Australian Citizenship Act 1948 (Cth) does not provide us with any further guidance to its meaning in more substantive terms. We have to look at other pieces of legislation to discover the more practical legal consequences of the status of citizenship and what they, in turn, reflect about the meaning of citizenship in Australia in the 21st century.

III LEGISLATIVE AND COMMON LAW EXPRESSIONS OF CITIZENSHIP

There has never been a comprehensive cataloguing of all the legislation that discriminates between citizens and non-citizens. Moreover, such a list will not remain static as legislation is continually amended, repealed or enacted. My research has identified 134 Commonwealth Acts which distinguish between citizens and non-citizens, and a further 88 Commonwealth Acts in which a distinction is made between residents and non-residents.[95] The Commonwealth Acts which do discriminate in some fashion do not do so on a consistent basis — some distinguish between residents and non-residents; others on the basis of Australian citizenship; and a small number use other words, such as ‘domicile’.[96] These differences reflect various approaches to citizenship — some as exclusion and some as inclusion. Similarly, there has never been a comprehensive review of all the High Court decisions which use the word ‘citizen’. My research has identified over 250 cases.[97] Again, this research reflects different approaches to citizenship. These two areas of law are the focus of this part of the paper, as they reflect upon citizenship as inclusion and exclusion throughout the past century.

A Legislative Expressions of Citizenship

While the list of Acts which discriminate upon the basis of citizenship or a particular type of membership of the community is rather erratic, it can be broadly divided according to subject matter. These subjects include:

A more extensive explanation of these different Acts is beyond the scope of this article. It is interesting, though, to highlight briefly a few Acts that are not commonly thought about when identifying the consequences of citizenship or non-citizenship. For instance, to become a member of the Council of the Australian Institute of Marine Science a person must be a citizen,[110] whereas a substantial number of members of the Policy Advisory Council for the Australian Centre for International Agricultural Research must be residents of other countries.[111] To be appointed to the Reserve Bank Service one has to be a citizen also.[112] Citizenship is therefore sometimes, but not always, important for membership of public bodies. To be registered as a Minister of Religion capable of conducting marriages in Australia one has to be a resident,[113] and to be qualified as a migration agent one has to be a citizen or resident.[114] Therefore, to play a key role in other people’s lives in the community, often residency is sufficient. Similarly, both citizens and residents are eligible for payment for authoring books held in Australian libraries.[115] This last example recognises the broader notion of contribution to the community of persons, regardless of their formal legal status. These are just a few examples of different practical aspects of membership within the community and how they are regulated by Parliament in an inconsistent fashion.

Some of the more recognised Acts which distinguish upon the basis of citizenship are outlined below, yet they also reflect mixed messages about citizenship as inclusion and exclusion.

1 Political Membership

The central piece of legislation reflecting political membership in Australia is the Commonwealth Electoral Act 1918 (Cth). Citizenship is the necessary qualification for voting in Commonwealth elections.[116] Australia’s links to Britain can still be seen in the Act, as British subjects who were enrolled immediately before 26 January 1984 are entitled to remain on the electoral roll.[117] To this extent, Australian political membership in the 20th century has extended beyond legal citizenship as it includes certain people who are permanent residents. These qualifications are mirrored within the State systems in that the State Electoral Acts are linked to the Commonwealth Act.[118] However, within local government, voting rights are not dependent upon citizenship, but rather property ownership.[119] Moreover, in New Zealand voting rights are linked to residence rather than citizenship.[120] These contrasting examples of voting rights beyond citizenship have never been the subject of elaborate debate about whether the distinction of citizenship is the appropriate determining factor for formal political membership.[121] A requirement of residence over citizenship for political membership is arguably a more inclusive approach to citizenship.[122]

Another key piece of legislation which has already been discussed is the Migration Act 1958 (Cth). The ability to move freely in and out of the country is another form of political determination of the membership of the community. Similarly, the Passports Act 1938 (Cth), in only allowing citizens to be issued passports, is a practical expression of this political membership. Moreover, the decision as to who is let into the country will also have an impact upon who is later eligible to become a citizen and a full political member.[123] The Migration Act 1958 (Cth) also poignantly highlights notions of exclusion through its objects,[124] through its removal and deportation sections,[125] and in its detention provisions.[126] Moreover, as discussed below,[127] the High Court has reaffirmed the view that the executive has immense power in determining membership of the Australian community.[128]

2 Acts That Confer Benefits

There are many Acts that confer benefits upon people in the community, regardless of whether they are formal citizens, permanent residents or temporary residents. This reflects a wider notion of social membership and speaks to the normative value of citizenship as expressed within the Australian community, although it too is often subject to change.[129] For instance, in the new tax system legislation, the family assistance provisions are linked to residence rather than citizenship,[130] as are many provisions in the Social Security Act 1991 (Cth)[131] and certain provisions in the Veterans’ Entitlements Act 1986 (Cth).[132]

Such a broad approach to membership, based on residence rather than formal legal citizenship, is consistent with a more inclusive notion of citizenship. It is reflective of an argument recently proposed by constitutional scholar Ruth Rubio-Marin. She argues that liberal norms of justice and democracy require that there should be a time threshold after which immigrants (legal or illegal) should either be granted equal rights with citizens, or be awarded nationality automatically without any conditions or tests.[133]

The differences and inconsistencies between citizenship and residence in Australia show that the ideal of universal citizenship is sometimes incorporated through the legal system, but not consistently. The universal notion often jars with other formal exclusive representations of legal citizenship. As Bosniak argues, ‘[t]he challenge to universal citizenship becomes especially clear if we focus on the condition of noncitizens, or aliens, who reside within the liberal democratic community.’[134] For the reality is that non-citizens, whether they be permanent residents or temporary residents, are participants in our community:

As workers, taxpayers, consumers, neighbors, they are persons who constitute part of the life of the (nationally bounded) political community — the very community that citizenship in its internal mode considers its proper domain of concern.[135]

This tension between citizenship as exclusion and inclusion is not unique to Australia. Peter Spiro, a US academic reviewing Rogers Smith’s book,[136] describes the tensions as giving rise to the ‘citizenship dilemma’: ‘On the one hand, exclusionary approaches have been morally and legally discredited. On the other hand, inclusion waters down the strength of national identity.’[137]

A final example, which poignantly displays the different standards of membership within Australia and the inherent tensions between inclusion and exclusion, is the Defence Act 1903 (Cth). The Act does not exclude non-citizens from voluntarily joining the forces,[138] nor is there a distinction for the purpose of compulsory conscription. Section 59 outlines who is presently liable to serve in the Defence Force in time of war, and all persons (except those who are exempt from the section or to whom it does not apply)[139] who have resided in Australia for not less than six months and who are over 18 and under 60, are liable. The Australian government has called upon non-citizens to form part of the defence force during the 20th century.[140] The High Court was asked to consider the validity of this in Polites v Commonwealth.[141] The National Security Act 1939–1943 (Cth) gave the Governor-General the power to make regulations requiring ‘persons to place themselves, their services and their property at the disposal of the Commonwealth.’[142] Polites, a Greek national, challenged the validity of the regulations requiring service of resident aliens.[143]

The Court held that the Parliament had been clear in its intention to include aliens, and according to the principles of national sovereignty, had the constitutional power to impose this requirement. There was little, if any, comment on what the requirement meant for the status of the Greek national, Polites, as a resident in Australia. Latham CJ, however, stated:

It is for the Government of the Commonwealth to consider its political significance, taking into account the obvious risk of the Commonwealth having no ground of objection if Australians who happen to be in foreign countries are conscripted for military service there.[144]

Therefore, defending the nation has not been the exclusive duty of Australian citizens. As the situation stands at present, the government can call upon non-citizens who reside temporarily in Australia to serve in the Defence Force. In looking at citizenship as the broader concept of membership of the community, the requirement to serve one’s community as a soldier may be one factor identifying those who are members. In the example of service as a soldier, many non-citizens were brought within this concept of citizenship as membership, and have the potential to be so included within current legislation. This is arguably a more ‘inclusive’ notion of citizenship in its inclusion of residents.[145] However, this brings into sharp focus the inconsistencies between exclusive and inclusive meanings of citizenship in that those non-citizens who were forced to fight for Australia in the 20th century were not entitled to vote in Commonwealth elections. Further, while on active service abroad, they did not have an absolute right of re-entry into Australia. This example highlights the inconsistent approach to the incidents of citizenship in 20th century Australian legislation.

B The High Court and Citizenship[146]

This article has already highlighted some of the High Court cases in the first 50 years of the century dealing with issues of citizenship and immigration. The latter half of the century has its own cases dealing with those areas. But this has not been the only context in which the word ‘citizen’ appears in the judgments of the Court. In fact, my research into the use of the word ‘citizen’ by the Court throughout the century[147] shows further illustrations of a confused and inconsistent approach to citizenship. This again reflects the lack of clarity in law on the subject and the use of citizenship as both an inclusive and exclusive concept.

1 Citizen as Legal Citizen

As explained above, citizenship has had little constitutional consequence. As Gaudron J says in Lim:

Citizenship, so far as this country is concerned, is a concept which is entirely statutory, originating as recently as 1948 ... It is a concept which is and can be pressed into service for a number of constitutional purposes ... But it is not a concept which is constitutionally necessary, which is immutable or which has some immutable core element ensuring its lasting relevance for constitutional purposes.[148]

It is this absence of constitutional purpose that has constrained the High Court in shaping the meaning of citizenship, depriving us of a clear sense, constitutionally and legally, of whom we regard as members of the Australian community.

The Court has had to deal with the consequences of citizenship most directly in immigration and deportation cases, similar to the cases in the first 50 years of the century. The definition of ‘aliens’ has been considered by the High Court because of the changed relationship between Australia and England and the common heritage of being ‘British subjects’. In two cases non-citizens who were about to be deported under the Migration Act 1958 (Cth) sought to prevent their deportation by arguing that they were not ‘aliens’ because they were British subjects.[149]

In Pochi v Macphee[150] the High Court confirmed that the power to define the meaning of aliens is in Australian hands and denied that English law governed the question. As Gibbs CJ pointed out, ‘[i]f English law governed the question who are aliens within s 51(xix) almost all Australians born in Australia would in future be aliens within that provision. The absurdity of such a result would be manifest.’[151]

In an obiter statement Gibbs CJ also stated that aliens were ‘person[s] born outside Australia whose parents were not Australian and who [have] not been naturalized as an Australian’.[152] The majority in Nolan v Minister for Immigration and Ethnic Affairs[153] confirmed Gibbs CJ’s definition of an alien and added to it persons who have ‘ceased to be a citizen by an act or process of denaturalization and restricted to exclude a person who, while born abroad, is a citizen by reason of parentage’.[154] Gaudron J, who dissented in the case, defined an alien as

a person who is not a member of the community which constitutes the body politic of the nation state ... For most purposes it is convenient to identify an alien by reference to the want of absence of the criterion which determines membership of that community. Thus, where membership of a community depends on citizenship, alien status corresponds with non-citizenship; in the case of a community whose membership is conditional upon allegiance to a monarch, the status of an alien corresponds with the absence of that allegiance.[155]

Thus, the changed relationship between England and Australia, and Australia’s steps towards independence as a sovereign nation, have changed the meaning of the term ‘alien’. As Zines explains, the Court’s interpretation of terms in the Constitution is not wedded to their meaning at the time of Federation. While the abstract meaning remains constant, the denotation changes. So while a British subject would not have been an alien in 1900, the Court has taken into account the ‘development of the independence of Australia, the evolution of the Crown from an Imperial to a national office and the creation of a national citizenship’.[156]

The Court’s more recent attempts at discussing membership of the Australian community have been prompted by considerations of s 117 of the Constitution, which demands: ‘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.’ In Street v Queensland Bar Association[157] the Court broadened its interpretation of s 117, dropping clues as to its view of citizenship as membership.

Mason CJ saw s 117 as designed to enhance ‘national unity and a real sense of national identity’[158] while not directly discussing the meaning of citizenship. Brennan J deemed it unnecessary to determine whether the term is synonymous with Australian citizen, and referred to the Convention Debates where the term was consciously left open.[159] However, Deane J made explicit use of the term ‘citizen’, stating that the operation of s 117 is to ‘protect the citizen resident in one State from being subjected in another State to “disability or discrimination”’.[160] More fundamentally, the section is, in his view, directed to the ‘promotion of national economic and social cohesion and the establishment of a national citizenship’.[161] Thus, he sought to use s 117 to influence the shape of Australian citizenship. The equation of citizenship and equality was also a theme of Dawson J, who viewed s 117 as ensuring that persons from one state be treated in another ‘as citizens of the one nation, not as foreigners’.[162]

What was not resolved in this case is very important in determining the breadth of citizenship. ‘Whether a person living in Australia, but not a natural born or naturalized Australian citizen, is entitled to the protection accorded by s 117 is a matter to be considered when the occasion arises’,[163] Toohey J stated. If that case arises, it will truly test the boundaries of membership of the Australian community. The Court will have to consider the difference between the legal status of citizen, permanent resident and temporary resident, which will involve considerations similar to the discussions in Potter v Minahan,[164] and the broader notion of who is regarded as a member of the Australian community.

2 Rights of Legal Citizens

There are several cases where the Court has determined rights of citizenship without any clear sense of the source of these rights. For instance, in Air Caledonie International v Commonwealth[165] the High Court affirmed that citizenship status provides a person with a right of entry to Australia. The decision struck down as unconstitutional a charge imposed on international airline passengers entering Australia. Relevant to the jurisprudence of citizenship is the Court’s statement that: ‘The right of the Australian citizen to enter the country is not qualified by any law imposing a need to obtain a licence or “clearance” from the Executive.’[166] This ‘right’ of re-entry by Australian citizens is not a specific constitutional right, and there is no reference in the case as to where this right derives, so it may be best characterised as a common law right of citizenship. A similar analysis can be applied to Gaudron J’s judgment in Teoh,[167] another migration law matter involving deportation and questions of procedural fairness. Gaudron J concentrated on the citizenship status of the deportee’s children:

Citizenship involves more than obligations on the part of the individual to the community constituting the body politic of which he or she is a member. It involves obligations on the part of the body politic to the individual, especially if the individual is in a position of vulnerability. And there are particular obligations to the child citizen in need of protection. So much was recognised as the duty of kings, which gave rise to the parens patriae jurisdiction of the courts. No less is required of the government and the courts of a civilised democratic society.[168]

In Gaudron J’s view,

citizenship carries with it a common law right on the part of the children and their parents to have a child’s best interests taken into account, at least as a primary consideration, in all discretionary decisions by governments ... directly affect[ing] that child’s individual welfare.[169]

The opinion is confined to the legal notion of citizenship, which arose due to the Australian citizenship status of the children. It would not have been relevant if the children were not citizens. The view is unique in that it identifies citizenship as a fundamental source of rights not otherwise articulated. However, in both Air Caledonie International v Commonwealth and Lim the relevant right is reserved for legal citizens.

3 Rights of Citizen-Persons[170]

In many judgments where the word ‘citizen’ appears, the High Court is using the word interchangeably with the word ‘person’. Like the rest of the Australian community, the High Court often uses the word ‘citizen’ when it is really talking about individuals bearing rights — who could very well be non-citizen permanent residents, or temporary residents. This has added to the confused understanding of citizenship in Australia. In this context, the Court uses citizenship as a concept linking rights to personhood — a universal concept concerning human beings living in a political community. This is an expression of citizenship as an inclusive concept in contrast to an exclusive legal status.

Often these references by the Court are in the context of a common law of citizenship. One, for instance, is Barwick CJ’s reference to the ‘fundamental principle that if Parliament intends to derogate from the common law right of the citizen it should make its law in that respect plain’.[171] Indeed, it has been argued that the belief by the framers in the common law rights of citizenship was one of the reasons for the absence of a bill of rights in the Constitution. In Australian Capital Television Pty Ltd v Commonwealth[172] Mason CJ, in discussing the reluctance of the framers of the Constitution to incorporate a comprehensive guarantee of individual rights, states that the framers accepted, in accordance with the prevailing English thinking, that ‘the citizen’s rights were best left to the protection of the common law in association with the doctrine of parliamentary supremacy’.[173]

The common law has been the source of much litigation concerning rights, yet these are not only reserved for Australian citizens. In Re Bolton; Ex parte Beane[174] Bolton was an American citizen who had deserted the US army which then sought his return. He was detained by the Australian army and petitioned the High Court for writs of habeas corpus for his release. Justice Brennan declared: ‘[T]he laws of this country secure the freedom of every lawful resident, whether citizen or alien, from arrest and surrender into the custody of foreign authorities on a mere executive warrant.’[175]

His point was general: the laws of the country apply to citizens and non-citizens. As Gibbs CJ states in Actors and Announcers Equity Association v Fontana Films:

It is unlikely, for example, that it was intended that the Parliament might provide that the rights and duties of aliens should be determined by a special law, different from that which applies to Australian citizens, in relation to such matters as contracts, torts, succession and criminal responsibility.[176]

So, too, in many torts cases, for instance, the Court refers to citizens when it presumably includes non-citizens. In the negligence case of Shaddock & Associates v Parramatta City Council [No 1][177] Mason J speaks of negligent advice provided by life insurance companies compared to advice by government departments or statutory authorities. In his discussion he refers to the receiver of advice as the ‘citizen’:

[T]here is no persuasive reason for saying that the citizen who sustains damage as a result of information negligently given by a government department or authority has no remedy, although the citizen who sustains similar damage as a result of information negligently given by an investment adviser has a remedy.[178]

It is likely Mason J uses the word citizen because the case deals with the relationship between government and the individual. But a non-citizen who relies on a public authority’s advice could equally claim liability against the government.

Similarly, in a trespass case[179] ‘citizen’ was used in the context of exceptions to the general rule that a person is a trespasser unless that person enters premises with the consent of the occupier. Barwick CJ uses the terminology of citizenship when looking at a lessee’s rights under a city ordinance, when the lessee could well have been a non-citizen.[180] His Honour also uses citizenship in discussing the effect of precedent upon individuals. In Geelong Harbour Trust Commissioners v Gibbs, Bright & Co he states:

The Court, in my opinion within limits ... should be ready to depart from the reasoning of an earlier case where it is convinced that that reasoning is clearly wrong and that the rights of the citizens should not for the future be tied to conclusions founded upon it.[181]

The terminology of citizenship is also used in criminal law cases involving common law principles. Barwick CJ uses citizenship when discussing a person’s right to refuse to answer incriminating questions[182] and citizenship is the terminology used by Stephen and Aickin JJ in a case concerning illegally obtained evidence when discussing the ‘right to immunity from arbitrary and unlawful intrusion into the daily affairs’ of a person.[183] McHugh and Gummow JJ use citizenship in a listening device case in discussing the liberty and privacy of individuals.[184] In contrast, Kirby J uses the term ‘individual’,[185] referring to the same people. The term ‘citizen’ is also used in a case considering the right of the state to call a Royal Commission,[186] and in a native title application case regarding the questions of a Commissioner who, the Court held, ‘had the common law right of every citizen to ask questions’.[187] It is used, too, in another case when discussing a person’s right to a hearing, when in fact the right accords to persons generally.[188] McHugh J discusses the common law protection of legal professional privilege as a ‘fundamental right of the citizen’,[189] which he states could only be made by the Parliament and not the judiciary as a matter of democratic principle. All of these cases where ‘citizen’ appears should more accurately have referred to ‘persons’.

So, too, in A v Hayden[190] the Court uses the word citizen when discussing the responsibility of ‘persons’ to disclose a felony. Mason J looks at the philosophy underlying the issue and states:

[T]he effective enforcement of the criminal law and the administration of justice, which are central elements in a well ordered democratic society, depend for their efficacy on the unrestricted freedom of each and every citizen to assist and co-operate with the authorities in the investigation and prosecution of criminal offences.[191]

It is unclear whether these common law citizenship rights discussed in this section will ever be implied by the High Court as constitutional rights which Parliament cannot override.[192] What is clear, though, is that the Court, in dealing with legal issues associated with citizenship, has not confined its discussion on the rights and responsibilities of common law citizenship to legal citizens. Underlying this is a conception of the state enforcing the rule of law and protecting human rights. This incorporates broader aspects of citizenship. It reflects a desire to incorporate the normative notions of citizenship within the legal framework. It shows the Court using the term ‘citizen’ to represent a person broader than the legal citizen; it is rather the ‘good citizen’, the participating, civic-minded member of the community to whom the Court is referring. Juridically included by the term is the person deserving of the protection of the state and of equality of treatment, regardless of whether the person is a citizen, permanent resident or temporary resident.[193]

Even if these rights are some day deemed constitutionally protected, it is also not clear whether these rights will be extended to non-citizens. While it appears that the Court has included those very non-citizens as deserving of protection through the common law, it is questionable whether they would be included in a framework of a constitutionally entrenched bill of rights. In fact, in the one High Court case to deal with implied constitutional rights and their extension to non-citizens, the Court was not clear about the breadth of the protection.[194] In any future discussions about a bill of rights, the Constitution and citizenship, these distinctions would need to be transparent and resolved through extensive public debate.

IV CONCLUSION

The first century of the new millennium casts Australian citizenship law at the still point of T S Eliot’s ‘past and future’.[195] The gravitational pull is toward the manifest confusion of the century just concluded. And the space ahead is only made clear by removing this past debris and assembling citizenship in the Constitution anew. This requires the courage, statecraft and will to grasp and properly address citizenship while the 21st century is only just getting underway. It is a pity that the Australian Citizenship Council was not specifically asked to address the concepts of citizenship in the Constitution[196] as, in my view, they are fundamental to all other issues raised in its report. The report wishes to speak of citizenship as a concept of inclusion, but how can a government honestly do this if its source document of law, the Constitution, together with the other legal expressions of citizenship in legislation and through the common law, are returning mixed messages on membership of the community?

The report seems content to see Australian citizenship as inclusive because of the high number of permanent residents becoming formal Australian citizens. This assessment ignores the distinctions between citizen and permanent resident when it comes to normative notions of citizenship. It accepts as appropriate the range of inconsistencies and instances of discrimination that occur in legislation and which are reaffirmed by High Court judgments on citizenship as both an exclusive legal concept and as a broader inclusive normative notion.

Overlaying the internal argument is the recent focus on internationalisation and globalisation and their impact upon citizenship. The Australian Citizenship Council report stated:

Speaking of citizenship and civic values can sometimes puzzle those who believe the world is moving into a ‘global village’. They point to the enormous changes in transport and technology that have brought people so much more closely together in both time and space, to the ‘globalism’ of the money markets, transnational corporations and mass culture, to the growth of international regulatory bodies and attempts to set up transnational organisation [sic] such as the European Union. In the face of all of this, some of them then see concern with national citizenship as a revival of narrow, outdated and potentially dangerous nationalism.[197]

Matters of citizenship and globalisation are the subject of their own full articles and books.[198] Raising them, however, in conclusion highlights the further pressing need to canvas fully the meaning of citizenship for the 21st century. Thus, the unresolved issues of the 20th century are further complicated by the need to address them in the context of the changing global environment within which citizenship operates. A recent consultation paper by the South Australian government proposes that two seats in South Australia’s upper house of Parliament be reserved for ‘virtual voters’, giving expatriates a chance to participate in home politics. The objectives of the virtual electorate initiative are to

encourage expatriates to continue to contribute to their home State; bring global representation and perspectives into South Australia’s legislature for the benefit of all citizens; reaffirm South Australia’s position as a leader in democratic reform and an information-enabled community.[199]

The right to vote, a fundamental expression of political citizenship, is to be re-considered in this instance in light of the technological and global realities of the 21st century, raising its own new issues of inclusion and exclusion. This is just one example of many where traditional notions of citizenship are being reshaped. Decision-makers and those who contribute to public policy debate have a responsibility to all members of the Australian community to consider these matters afresh, consciously addressing the normative value of citizenship and the fundamental impact of law on the future cohesion of the Australian nation.


[*] BA, LLB (Hons) (Melb), LLM (Harv); Senior Lecturer in Law, the University of Melbourne. I am grateful for the research assistance of Jennifer Patterson, Kylie Evans, Evelyn Ng, Mark Grasso and Larissa Halonkin, funded by two Australian Research Council small grants. I would also like to thank Garry Sturgess for his comments on a draft of this paper.

[1] A partial selection of recent books includes: Andrew Vandenberg (ed), Citizenship and Democracy in a Global Era (2000); Ruth Rubio-Marin, Immigration as a Democratic Challenge: Citizenship and Inclusion in Germany and the United States (2000); Kimberly Hutchins and Roland Dannreuther (eds), Cosmopolitan Citizenship (1999); Hartley Dean and Margaret Melrose, Poverty, Riches and Social Citizenship (1999); Joy Damousi and Katherine Ellinghaus (eds), Citizenship, Women and Social Justice: International and Historical Perspectives (1999); Karen Slawner and Mark Denham (eds), Citizenship after Liberalism (1998); Rainer Baubock and John Rundell (eds), Blurred Boundaries: Migration, Ethnicity, Citizenship (1998); Peter Schuck, Citizens, Strangers and In-Betweens: Essays on Immigration and Citizenship (1998); Ruth Lister, Citizenship: Feminist Perspectives (1997); Nira Yuval-Davis, Gender and Nation (1997); Richard Dagger, Civic Virtues: Rights, Citizenship, and Republican Liberalism (1997); Rogers Smith, Civic Ideals: Conflicting Visions of Citizenship in US History (1997); T K Oomen, Citizenship, Nationality and Ethnicity: Reconciling Competing Identities (1997); Joseph Rotblat (ed), World Citizenship: Allegiance to Humanity (1997); Douglas Klusmeyer, Between Consent and Descent: Conceptions of Democratic Citizenship (1996); Ronald Beiner (ed), Theorizing Citizenship (1995); Will Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights (1995); Rainer Baubock, Transnational Citizenship: Membership and Rights in International Migration (1994); Paul Barry Clarke (ed), Citizenship (1994); Don Eberly (ed), Building a Community of Citizens: Civil Society in the 21st Century (1994); Yasemin Soysal, Limits of Citizenship: Migrants and Postnational Membership in Europe (1994); Bryan Turner, Citizenship and Social Theory (1993); Judith Shklar, American Citizenship: The Quest for Inclusion (1991); Peter Schuck and Rogers Smith, Citizenship without Consent (1985). Australian works include: Stephen Castles and Alastair Davidson, Citizenship and Migration: Globalization and the Politics of Belonging (2000); Wayne Hudson and John Kane (eds), Rethinking Australian Citizenship (2000); Kim Rubenstein (ed), Individual, Community, Nation: 50 Years of Australian Citizenship (2000); John Chesterman and Brian Galligan, Defining Australian Citizenship: Selected Documents (1999); Nicolas Peterson and Will Sanders (eds), Citizenship and Indigenous Australians: Changing Conceptions and Possibilities (1998); John Chesterman and Brian Galligan, Citizens without Rights: Aborigines and Australian Citizenship (1997); Alastair Davidson, From Subject to Citizen: Australian Citizenship in the Twentieth Century (1997); Ann-Mari Jordens, Alien to Citizen (1997); S Rufus Davis (ed), Citizenship in Australia: Democracy, Law and Society (1996); Ann-Mari Jordens, Redefining Australians: Immigration, Citizenship and National Identity (1995). There is an even longer selection of journal articles which could also be listed.

[2] Some recent examples include: Civics Expert Group, Whereas the People: Civics and Citizenship Education (1994); Joint Standing Committee on Migration, Australians All: Enhancing Australian Citizenship (1994); Senate Legal and Constitutional References Committee, Discussion Paper on a System of National Citizenship Indicators (1995); and the final report, Senate Legal and Constitutional References Committee, National Well-Being: A System of National Citizenship Indicators and Benchmarks (1996); House of Representatives Standing Committee on Legal and Constitutional Affairs, Aspects of Section 44 of the Australian Constitution (1997), dealing with citizenship of a foreign power.

[3] Australian Citizenship Council, Australian Citizenship for a New Century: A Report by the Australian Citizenship Council (2000).

[4] Another legal term used for citizenship is nationality. Nationality is often referred to when discussing legal formal membership in the international context, whereas citizenship is the term used for legal formal membership in the national, domestic context. For further discussions about the distinction, see Kim Rubenstein and Daniel Adler, ‘International Citizenship: The Future of Nationality in a Globalized World’ (2000) 7 Indiana Journal of Global Legal Studies 519, 521.

[5] This divide has been recently highlighted in Linda Bosniak, ‘Universal Citizenship and the Problem of Alienage’ (2000) 94 Northwestern University Law Review 963; Karen Slawner, ‘Uncivil Society: Liberalism, Hermeneutics, and “Good Citizenship”’ in Karen Slawner and Mark Denham (eds), Citizenship after Liberalism (1998) 81. One article that Bosniak highlights in particular (at 963) is Will Kymlicka and Wayne Norman, ‘Return of the Citizen: A Survey of Recent Work on Citizenship Theory’ (1994) 104 Ethics 352, in which Kymlicka and Norman review the increasing literature by theorists about citizenship and its value as a normative project, concentrating particularly on citizenship as ‘desirable activity’ and citizenship as ‘identity’.

[6] This legal distinction is determined by the Australian Citizenship Act 1948 (Cth) and the Migration Act 1958 (Cth), in which each status is defined. The consequences of each status are set out more clearly in the material below on the legislative consequences of citizenship: see below Part III(A) and accompanying text.

[7] Bryan Turner, Citizenship and Capitalism: The Debate over Reformism (1986) 135.

[8] This has also been discussed in Rubenstein and Adler, above n 4, 521–2.

[9] Peter Spiro categorises the tensions between citizenship as ‘exclusion’ and citizenship as ‘inclusion’ as the ‘citizenship dilemma’. See Peter Spiro, ‘The Citizenship Dilemma’ (1999) 51 Stanford Law Review 597.

[10] Australian Citizenship Council, above n 3, 7. See also Kim Rubenstein, ‘Citizenship in Australia: Unscrambling Its Meaning’ [1995] MelbULawRw 28; (1995) 20 Melbourne University Law Review 503, which sets out the difference between legal notions of citizenship and broader concepts of membership of the community.

[11] Bosniak, above n 5, 965.

[12] Ibid 966.

[13] A detailed review of United States history on this topic can be seen in Rogers Smith, Civic Ideals: Conflicting Visions of Citizenship in US History (1997).

[14] For a more detailed account of citizenship and the Constitutional Convention Debates, see Kim Rubenstein, ‘Citizenship in the Constitutional Convention Debates: A Mere Legal Inference’ (1997) 25 Federal Law Review 295. See also Helen Irving, To Constitute a Nation: A Cultural History of Australia’s Constitution (1997); Helen Irving, ‘Citizenship before 1949’ in Kim Rubenstein (ed), Individual, Community, Nation: 50 Years of Australian Citizenship (2000) 9; John Williams, ‘Race, Citizenship and the Formation of the Australian Constitution: Andrew Inglis Clark and the “14th Amendment”’ (1996) 42 Australian Journal of Politics and History 39.

[15] Citizenship of a ‘foreign power’, however, is referred to in s 44(i) of the Constitution as a ground for disqualification from membership of the Parliament.

[16] Official Record of the Debates of the Australasian Federal Convention, Melbourne 1898, 3 March 1898, 1788 (John Quick).

[17] Ibid 1780–2 (S H Symon, John Forrest, Isaac Isaacs).

[18] Ibid 1797 (Isaac Isaacs).

[19] Ibid 1788–97.

[20] Ibid 1797 (John Cockburn).

[21] John Rourke, ‘White Australia — Origins’ (1957) 20 Current Affairs Bulletin 170, extracted in A T Yarwood, Attitudes to Non-European Immigration (1968) 19.

[22] Chinese Regulation Act 1857 (Vic).

[23] Memorial from the Colonial Secretary’s Office to the Secretary of State for Colonies, 25 January 1881, reproduced in Charles Price, The Great White Walls Are Built: Restrictive Immigration to North America and Australasia 1836–1888 (1974) 168–9.

[24] New South Wales, Parliamentary Debates, Legislative Assembly, 13 July 1881, 97 (Sir Henry Parkes, Premier).

[25] Ibid 97, 100; and New South Wales, Parliamentary Debates, Legislative Assembly, 2 August 1881, 414–17 (Sir Henry Parkes, Premier).

[26] Sir H T Holland, Letter from Sir H T Holland to the Governors of the Australasian Colonies and the Governor-General of Canada in United Kingdom, Correspondence Relating to Chinese Immigration into the Australian Colonies, with a Return of Acts Passed by the Legislatures of Those Colonies and of Canada and British Columbia on the Subject (C 5448, 1888) 2; see also Price, above n 23, 186.

[27] Chung Teong Toy v Musgrove [1888] VicLawRp 81; (1888) 14 VLR 349, 350–2 (Williams J).

[28] As explained in Mary Crock, Immigration and Refugee Law in Australia (1998) 211, the impact of the findings in the High Court decision Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 (‘Lim’) that the plaintiff’s detention may have been unlawful meant that,

[w]ithin days of the judgment in Lim, applications were made to the High Court seeking damages for wrongful detention. The government’s response was to enact s 54RA, later s 184 of the Act, stipulating that any damages payable for wrongful detention be limited to one dollar per day. This provision was repealed in 1995, and replaced by provisions which attempt to retrospectively remedy the illegality (if any) attaching to the detention of designated persons: see Migration Legislation Amendment Act (No 6) 1995, s 9 (citation omitted).

[29] Chung Teong Toy v Musgrove [1888] VicLawRp 81; (1888) 14 VLR 349, 422–3 (Williams J), 431–2 (Holroyd J), 434 (A’Beckett J), 443 (Wrenfordsley J).

[30] Musgrove v Chun Teeong Toy [1891] AC 272, 283.

[31] Commonwealth, Parliamentary Debates, House of Representatives, 12 September 1901, 4804 (Alfred Deakin, Attorney-General).

[32] Ibid. Deakin also championed the power to deal with people of any and every race (except the Aboriginal inhabitants), and his comments about the Aboriginal people again reflect notions of white superiority: at 4805.

[33] Australian citizenship was first legally defined by the Nationality and Citizenship Act 1948 (Cth), which came into effect on 26 January 1949. The Act later became the Australian Citizenship Act 1948 (Cth), as discussed in more detail below Part II(C).

[34] Irving, ‘Citizenship before 1949’, above n 14, 10.

[35] Ibid 12.

[36] See Michael Pryles, Australian Citizenship Law (1981) 14–16. In particular, Australia was influenced by the common code of the British Nationality and Status of Aliens Act 1914 (UK) 4 & 5 Geo 5, c 17, which was intended to form the basis of a common, uniform law of nationality throughout the Empire. This period is discussed in greater detail in Kim Rubenstein, Australian Citizenship Law in Context (forthcoming, 2001).

[37] David Dutton, Citizenship in Australia: A Guide to Commonwealth Government Records (1999) 13.

[38] See Sue v Hill [1999] HCA 30; (1999) 163 ALR 648, 666 (Gleeson CJ, Gummow and Hayne JJ), 695 (Gaudron J), in which four members of the High Court confirmed that citizens of the United Kingdom are citizens of a ‘foreign power’ for the purpose of s 44(i) of the Constitution.

[39] While this is a plenary power, the Commonwealth government is still restricted by other notions protected by the Constitution, such as separation of powers and responsible government. The High Court case of Lim (1992) 176 CLR 1 reflects this restriction, but see also Mary Crock, ‘Climbing Jacob’s Ladder: The High Court and the Administrative Detention of Asylum Seekers in Australia’ (1993) Sydney Law Review 338.

[40] See discussion below nn 149156 and accompanying text.

[41] These include R v Lindbergh; Ex parte Jong Hing [1905] HCA 36; (1906) 3 CLR 93; Chia Gee v Martin [1905] HCA 70; (1906) 3 CLR 649; Christie v Ah Sheung (1906) 3 CLR 998; Preston v Donohoe [1906] HCA 43; (1906) 3 CLR 1089; Li Wan Quai v Christie [1906] HCA 42; (1906) 3 CLR 1125; A-G (Cth) v Ah Sheung [1906] HCA 44; (1907) 4 CLR 949; Ah Yin v Christie [1907] HCA 25; (1907) 4 CLR 1428 and Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277. See also Crock, Immigration and Refugee Law, above n 28, 15–20.

[42] [1908] HCA 63; (1908) 7 CLR 277.

[43] Ibid 305.

[44] Ibid 308.

[45] Ibid 320–1.

[46] [1925] HCA 6; (1925) 36 CLR 404.

[47] Ibid 408.

[48] [1925] HCA 53; (1925) 37 CLR 36.

[49] Ibid 63.

[50] Ibid 64.

[51] Ibid 65.

[52] Ibid 84 (emphasis in original).

[53] Ibid 85–6 (emphasis in original).

[54] Ibid 87.

[55] Ibid 88ff.

[56] Ibid 138.

[57] Ibid 63 (Knox CJ), 110 (Higgins J), 137 (Starke J).

[58] [1949] HCA 65; (1949) 80 CLR 533.

[59] Constitution s 51(xix).

[60] Koon Wing Lau v Calwell [1949] HCA 65; (1949) 80 CLR 533, 561.

[61] Ibid 561–2.

[62] Ibid 590.

[63] See above n 18 and accompanying text.

[64] Some of the material in this section builds upon sections in Rubenstein, ‘Citizenship in Australia’, above n 10.

[65] The Department of Immigration and Multicultural Affairs organised a commemorative year of events. The University of Melbourne was involved through its ‘50th Anniversary of Australian Citizenship Conference’ (Melbourne, 21–3 July 1999). All of the conference materials are available permanently at the conference website, which has been archived through the National Library of Australia: <http://pandora.nla.gov.au/nla/pandora/citizen.html> . See also Kim Rubenstein (ed), Individual, Community, Nation: 50 Years of Australian Citizenship (2000).

[66] The legal consequences are discussed further in Part III.

[67] Slawner, above n 5, 83.

[68] For a review of the changes until 1981, see Pryles, above n 36, 40–128. The full extent of changes until the current time is developed further in Rubenstein, Australian Citizenship Law in Context, above n 36. For a summary of the changes, see Joint Standing Committee on Migration, above n 2, 15–18. See also Sir Ninian Stephen, ‘Issues in Citizenship’ (Paper presented at the Deakin Lecture at the University of Melbourne, Melbourne, 26 August 1993) and more recently Sir Ninian Stephen, ‘Australian Citizenship: Past, Present and Future’ (Paper presented at the 8th Lucinda Lecture at Monash University, Melbourne, 23 August 2000).

[69] Australian Citizenship Act 1948 (Cth) s 10.

[70] Australian Citizenship Act 1948 (Cth) s 10A.

[71] Australian Citizenship Act 1948 (Cth) s 10B.

[72] Australian Citizenship Act 1948 (Cth) s 13.

[73] [1985] HCA 81; (1985) 159 CLR 550, 559 (Gibbs CJ), 588 (Mason J), 603 (Wilson J), 629 (Brennan J), 634 (Deane J).

[74] Ibid 570 (Gibbs CJ), 588 (Mason J), 603–4 (Wilson J), 629–30 (Brennan J), 634 (Deane J).

[75] The Joint Standing Committee on Migration in its report, Enhancing Australian Citizenship, above n 2, 100–1, proposed that s 10 remain unchanged, as did the Australian Citizenship Council, above n 3, 41. The decision of Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 (‘Teoh’) reflects the importance of citizenship in arguing for a legitimate expectation as a basis for natural justice. See further discussion of Teoh below, nn 167169 and accompanying text.

[76] See Joint Standing Committee on Migration, above n 2, xxvi, 100–1.

[77] Australian Citizenship Council, above n 3, 40.

[78] See Catherine Dauvergne, ‘Citizenship, Migration Laws and Women: Gendering Permanent Residency Statistics’ [2000] MelbULawRw 11; (2000) 24 Melbourne University Law Review 280.

[79] Australian Citizenship Act 1948 (Cth) s 13.

[80] Slawner, above n 5, 83.

[81] For some interesting literature on the notion of consent and citizenship, see Douglas Klusmeyer, Between Consent and Descent: Conceptions of Democratic Citizenship (1996); Peter Schuck and Rogers Smith, Citizenship without Consent (1985).

[82] Australian Citizenship Act 1948 (Cth) s 13(1)(d) and (e). Section 13(3) also provides a lesser period if the applicant has ‘completed not less than three months’ relevant defence service’ or ‘has been discharged from relevant defence service, before completing three months of that service, as medically unfit ... by reason of the person’s relevant defence service’.

[83] Australian Citizenship Act 1948 (Cth) s 13(1)(j).

[84] See Dauvergne, above n 78, 286–92 for an analysis of these sections regarding women and citizenship.

[85] Australian Citizenship Council, above n 3, 43–59.

[86] Inserted by Australian Citizenship Amendment Act 1993 (Cth) s 3.

[87] Bowtell v Goldsbrough, Mort & Co Ltd [1905] HCA 60; (1905) 3 CLR 444, 451 (Griffith CJ); see also D C Pearce and R S Geddes, Statutory Interpretation in Australia (4th ed, 1996) 117–18.

[88] Dawson v Commonwealth [1946] HCA 41; (1946) 73 CLR 157, 175 (Latham CJ), cited in Pearce and Geddes, above n 87, 118. See also Anne Winckel, ‘The Contextual Role of a Preamble in Statutory Interpretation’ [1999] MelbULawRw 7; (1999) 23 Melbourne University Law Review 184; and Anne Winckel, The Constitutional and Legal Significance of the Preamble to the Commonwealth Constitution, Past, Present and Future (LLM thesis, the University of Melbourne, 2000 (forthcoming)) ch 2.

[89] Australian Citizenship Act 1948 (Cth) s 17(1).

[90] For instance, many Australians who do this may not realise this consequence.

[91] Although the country of origin may demand that the person relinquish their citizenship, eg, Australian Citizenship Act 1948 (Cth) s 17(1).

[92] See, eg, National Multicultural Advisory Council, Australian Multiculturalism for a New Century: Towards Inclusiveness (1999).

[93] Australian Citizenship Council, above n 3, 60–5.

[94] Ibid 65.

[95] I have undertaken this research with the support of an Australian Research Council small grant. A fuller analysis from this research appears in Rubenstein, Australian Citizenship Law in Context, above n 36. I am grateful for the research assistance undertaken by Kylie Evans and Mark Grasso in the compilation of the list of Acts identified and the identification of the various categories as outlined below. The list is current to 31 December 1999.

[96] In private international law ‘domicile’ is defined as the headquarters or home each person is required to have in order to attract legal rights and duties: Whicker v Hume [1858] EngR 991; (1858) 7 HL Cas 124; 11 ER 50. A person’s domicile is generally the country in which they reside with an intention to remain for an indefinite period. Domicile is of three types: of origin, of choice, and of dependency: Edward Sykes and Michael Pryles, Australian Private International Law (3rd ed, 1991) 352, 354, 366. The concept of domicile is not uniform throughout the world. To a civil lawyer, it means habitual residence, but at common law it is regarded as the equivalent of a person’s permanent home: P M North and J J Fawcett, Cheshire and North’s Private International Law (1992) 139.

[97] This research was also undertaken with the assistance of an Australian Research Council small grant. I am grateful for the work of Jennifer Patterson and Evelyn Ng in their compilation of this list which is current to 31 December 1999.

[98] A New Tax System (Bonuses for Older Australians) Act 1999 (Cth) ss 3, 12, 26, 41; A New Tax System (Commonwealth–State Financial Arrangements) Act 1999 (Cth) sch 2, app D (First Home Owners Scheme) item D1(iii); A New Tax System (Family Assistance) Act 1999 (Cth) ss 21, 22, 34, 41, 43, 49; Australian Broadcasting Corporation Act 1983 (Cth) s 6; Australian Hearing Services Act 1991 (Cth) s 8; Child Care Payments Act 1997 (Cth) ss 20, 78; Child Support (Assessment) Act 1989 (Cth) ss 12, 24, 25, 25A; Childcare Rebate Act 1993 (Cth) div 2; Defence Service Homes Act 1918 (Cth) s 4; Disability Services Act 1986 (Cth) s 21; Farm Household Support Act 1992 (Cth) ss 7, 8A–B, 17; First Home Owners Act 1983 (Cth) s 17; Health Insurance Act 1973 (Cth) ss 3, 3J, 19AA–AB; Hearing Services Administration Act 1997 (Cth) s 5; Higher Education Funding Act 1988 (Cth) ss 41, 101; Home Deposit Assistance Act 1982 (Cth) s 19; Homes Savings Grant Act 1964 (Cth) ss 14, 14A, 14C; Homes Savings Grant Act 1976 (Cth) ss 15, 33B; International Shipping (Australian-Resident Seafarers) Grants Act 1995 (Cth) s 10; National Health Act 1953 (Cth) pt VII (Pharmaceutical Benefits Scheme) implemented by National Health (Budget Measures) Amendment Act 1996 (Cth) sch 3; Social Security Act 1991 (Cth) ss 7, 43, 51, 92, 945, 110, 146R, 155, 196, 198, 206, 247, 315, 325, 360, 362, 372, 408, 408BA, 408DD, 408QA, 500, 501C, 514G–H, 540, 540F, 545, 554D, 568, 571, 579D, 593, 638, 660W, 660XBA, 660XDD, 660XLA, 660YBA, 660YDD, 660YLA, 664G, 665M, 666–7, 702, 728ZC, 729, 771H, 771HA, 771ID, 771NZA, 772–3, 778, 796, 831A, 835, 838, 854, 900AB, 900AD, 900AU, 900M, 953–5, 969, 1035, 1061G, 1061K, 1061PA, 1061PM, 1061PZB, 1061ZA, 1061ZF, 1064–6, 1066A–B, 1068, 1068A–B, 1069, 1210, 1212, 1215–6, 1216A–B, 1218, 1220, 1220B, 1221, sch 1 (transitional provisions) ss 54, 105A, 201AA–AB, 549, 549D–E, 575, 575D–E, 623A–B, 660YCFA–YCFB, 696B–C, 739A, 771HNA–HNB, 1039AA–AB, 1061PT–PV, 1061ZAA; Veterans’ Entitlements Act 1986 (Cth) ss 5G, 36, 36H, 37, 37H, 38, 38H, 45M, 58M–N, 79G, 118Q, 118V, 118ZC.

[99] Australian Film Commission Act 1975 (Cth) s 3(2); Australian Industry Development Corporation Act 1970 (Cth) s 6; Australian Sports Commission Act 1989 (Cth) ss 6, 7; Broadcasting Act 1942 (Cth) s 114; Industry Research and Development Act 1986 (Cth) ss 39D–E; Inspector General of Intelligence and Security Act 1986 (Cth) s 8; International Shipping (Australian-Resident Seafarers) Grants Act 1995 (Cth) s 4(1); Ships (Capital Grants) Act 1987 (Cth)

s 8(4)–(5); Training Guarantee (Administration) Act 1990 (Cth) s 27.

[100] A New Tax System (Goods and Services Tax) Act 1999 (Cth) ss 38–190 items 2, 4, ss 38–355 item 3; Australian Capital Territory Stamp Duty Act 1969 (Cth) sch 2 (exemptions from stamp duty) items 5, 9, 17, 35; Australian Capital Territory Tax (Hire-Purchase Business) Act 1969 (Cth) s 6; Australian Capital Territory Tax (Insurance Business) Act 1969 (Cth) s 6; Australian Capital Territory Tax (Life Insurance Business) Act 1981 (Cth) s 6; Australian Capital Territory Tax (Purchases of Marketable Securities) Act 1969 (Cth) s 6; Australian Capital Territory Tax (Sales of Marketable Securities) Act 1969 (Cth) s 6; Australian Capital Territory Tax (Transfers of Marketable Securities) Act 1969 (Cth) s 6; Australian Capital Territory Tax (Vehicle Registration) Act 1969 (Cth) s 6; Australian National Railways Commission Act 1983 (Cth) s 43; Consular Privileges and Immunities Act 1972 (Cth) ss 7, 10; Customs Tariff Act 1995 (Cth) sch 4 item 5; Diplomatic Privileges and Immunities Act 1967 (Cth) ss 9, 11; Foreign States Immunities Act 1985 (Cth) s 12; Income Tax Assessment Act 1936 (Cth) s 23; Loans Securities Act 1919 (Cth) s 6B; Loans (Taxation Exemption) Act 1978 (Cth) s 4(2); Sales Tax (Exemptions and Classifications) Act 1935 (Cth) sch 1 items 70(c), 114A(1)(ii), 131; Sales Tax (Exemptions and Classifications) Act 1992 (Cth) sch 1 item 188.

[101] Air Navigation Act 1920 (Cth) s 27; Antarctic Marine Living Resources Conservation Act 1981 (Cth) s 5; Antarctic Treaty Act 1960 (Cth) s 4; Antarctic Treaty (Environment Protection) Act 1980 (Cth) ss 3, 4; Anti-Personnel Mines Convention Act 1998 (Cth) s 7; Audit Act 1901 (Cth) s 2A; Australian Securities and Investments Commission Act 1989 (Cth) s 12AC; Banking Act 1959 (Cth) s 39(2); Chemical Weapons (Prohibition) Act 1994 (Cth) s 5; Comprehensive Nuclear Test-Ban Treaty Act 1998 (Cth) s 9; Crimes (Biological Weapons) Act 1976 (Cth) s 5; Crimes (Overseas) Act 1964 (Cth) s 3; Debits Tax Act 1982 (Cth) s 4; Endangered Species Protection Act 1992 (Cth) s 119; Environment Protection and Biodiversity Conservation Act 1999 (Cth) ss 5, 224; Fisheries Management Act 1991 (Cth) ss 8, 13; National Parks and Wildlife Conservation Act 1975 (Cth) s 40; Nuclear Non-Proliferation (Safeguards) Act 1987 (Cth) s 38; Radiocommunications Act 1992 (Cth) s 16; Secret Commissions Act 1905 (Cth) s 10; Torres Strait Fisheries Act 1984 (Cth) s 54; Trade Practices Act 1974 (Cth) s 5; Weapons of Mass Destruction (Prevention of Proliferation) Act 1995 (Cth) s 6; Whale Protection Act 1980 (Cth) s 6.

[102] Income Tax Assessment Act 1997 (Cth) s 995.1 (permanent resident); Income Tax Assessment Act 1936 (Cth) ss 82AAS(1), 221AA(1) (eligible person); s 7(10) (TRTA); s 27A(1) (exempt resident/non-resident foreign termination payment); s 470 (foreign life assurance policy); s 23AA(1) (foreign contractor); ss 159GZA, 159GZY (foreign controller); s 23(v) (foreign defence assistants); s 23AA(1) (foreign employee); s 159GZA (foreign investor); s 23(c)(iii) (foreign officials); s 23(u) (foreign servicemen); s 6(1) (non-resident); Ra (86) s 3(1) (non-resident beneficiary); Ra (86) s 3(1) (non-resident taxpayer); s 121C (offshore person); s 317 (pt X Australian resident); s 470 (pt XI Australian resident); ss 51AGB(11), 89JC (place of residence); s 136(1) (FB); s 6(1) (prescribed dual resident); s 221A(1) (prescribed non-resident); ss 70(1), 97(2) (ITR); Ra (86) s 3(1); s 124ZAA(1) (qualifying Australian film); ss 6(1), 79A(4) (resident); Ra (86) s 3(1) (resident beneficiary); ss 23AJ(2), 160AE(1) (resident of a listed/unlisted country); s 159S (resident taxpayer); Ra (86) s 3(1); Ra (86) ss 16–20 (cessation of residence); ss 215, 255 (non-residents agents’ liabilities); s 221YL (non-resident withholding tax); s 6C (royalties paid by residents to non-residents).

[103] Bankruptcy Act 1966 (Cth) ss 43, 244, 247; Family Law Act 1975 (Cth) ss 39, 69E; Service and Execution of Process Act 1992 (Cth) s 9(2), (7).

[104] Liabilities placed upon citizens: Antarctic Treaty (Environment Protection) Act 1980 (Cth) s 19B; Crimes Act 1914 (Cth) s 50AD, pt IIIA (child sex tourism); Crimes (Aviation) Act 1991 (Cth) ss 13, 14, 25, 26; Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) ss 67; Crimes (Hostages) Act 1989 (Cth) s 8; Crimes (Torture) Act 1988 (Cth) s 7; Crimes at Sea Act 1979 (Cth) ss 8, 11; Criminal Code (Cth) ss 70.5, 270.5, 270.10, 270.11; Foreign Proceedings (Excess of Jurisdiction) Act 1984 (Cth) ss 7, 1011, 13; Shipping Registration Act 1981 (Cth) s 12; Space Activites Act 1998 (Cth) ss 8, 12, 66, 70; War Crimes Act 1945 (Cth) s 11.

Liabilities placed upon residents: A New Tax System (Medicare Levy Surcharge — Fringe Benefits) Act 1999 (Cth) s 10; Australian Sports Drug Agency Act 1990 (Cth) ss 16, 17 (as inserted by Australian Sports Drug Agency Amendment Act 1996 (Cth) but now repealed), s 66D (now repealed); Civil Aviation Act 1988 (Cth) s 22; Companies Act 1981 (Cth) ss 512, 515; Corporations Law ss 601CE, 601CV; Defence Act 1903 (Cth) s 59; Torres Strait Fisheries Act 1984 (Cth) s 16; Training Guarantee (Administration) Act 1990 (Cth) s 18.

Liabilities placed upon residents on behalf of non-residents: A New Tax System (Goods and Services Tax) Act 1999 (Cth) div 57; Agricultural and Veterinary Chemicals (Administration) Act 1992 (Cth) s 69B; Agricultural and Veterinary Chemicals Code (Cth) s 152; Australian Capital Territory Taxation (Administration) Act 1969 (Cth) s 85; Fringe Benefits Tax Assessment Act 1986 (Cth) s 100; Pay-Roll Tax Assessment Act 1941 (Cth) s 67; Pay-Roll Tax (Territories) Assessment Act 1971 (Cth) s 66; Petroleum Resource Rent Tax Assessment Act 1987 (Cth) s 92; Sales Tax Assessment Act (No 1) 1930 (Cth) ss 3A(4), 70; Sales Tax Assessment Act 1992 (Cth) s 124; Wool Tax (Administration) Act 1964 (Cth) s 88.

Liabilities placed upon non-citizens: Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Act 1990 (Cth) s 12; Immigration (Education) Charge Act 1992 (Cth) ss 5, 7; Navigation Act 1912 (Cth) s 128; Overseas Students Charge Act 1979 (Cth) s 4; Quarantine Act 1908 (Cth) s 35AA; Torres Strait Fisheries Act 1984 (Cth) s 14.

Liabilities placed upon non-residents: Foreign Acquisitions and Takeovers Act 1975 (Cth) ss 1921; Migration Act 1958 (Cth) s 201; Trade Marks Act 1955 (Cth) (repealed) ss 52, 142; Trade Marks Act 1995 (Cth) s 222.

[105] Advisory Council for Inter-Government Relations Act 1976 (Cth) s 8(2); Airports Act 1996 (Cth) s 59; Australian Capital Territory (Self-Government) Act 1988 (Cth) s 67; Australian Centre for International Agricultural Research Act 1982 (Cth) s 19; Australian Institute of Marine Science Act 1972 (Cth) s 33; Australian National Airlines Act 1945 (Cth) s 17; Australian Securities and Investments Commission Act 1989 (Cth) s 203; Broadcasting Act 1942 (Cth) ss 90FA, 92CA; Broadcasting Services Act 1992 (Cth) ss 57, 62, 109, 112; Close Corporations Act 1989 (Cth) ss 62, 115 (the latter section substituting Corporations Law s 461); Commonwealth Banks Act 1959 (Cth) s 90; Commonwealth Electoral Act 1918 (Cth) ss 934, 94A, 95, 163, 193; Commonwealth Serum Laboratories Act 1961 (Cth) s 19C; Commonwealth Teaching Service Act 1972 (Cth) s 20; Companies Act 1981 (Cth) ss 18(4), 20(5), 30D, 34, 219, 236; Constitutional Convention (Election) Act 1997 (Cth) s 24; Corporations Law ss 221, 240, 324, 331AA, 857, 1215, 1280(4), 1282(5), 1292; Development Allowance Authority Act 1992 (Cth) ss 93I(4A), (4B), 93ZAA; Export Market Development Grants Act 1997 (Cth) ss 6, 7(1), 25, 85; Film Licensed Investment Company Act 1998 (Cth) ss 15, 27; Futures Industry Act 1986 (Cth) ss 11, 92(3)(d); Insurance Act 1973 (Cth) ss 48A, 52, 75, 79; Life Insurance Act 1995 (Cth) s 93(4); Marriage Act 1961 (Cth) s 29; Migration Act 1958 (Cth) s 294; National Rail Corporation Agreement Act 1992 (Cth) sch 1, art 79; Northern Territory (Self-Government) Act 1978 (Cth) ss 201; Patents Act 1990 (Cth) s 198; Protection of Movable Cultural Heritage Act 1986 (Cth) s 22; Public Order (Protection of Persons and Property) Act 1971 (Cth) s 4; Public Service Act 1999 (Cth) ss 22(6), 22(8), 47; Qantas Sale Act 1992 (Cth) s 7; Referendum (Machinery Provisions) Act 1984 (Cth) s 3; Reserve Bank Act 1959 (Cth) s 68; Telstra Corporation Act 1991 (Cth) pt 2A.

[106] A New Tax System (Goods and Services Tax) Act 1999 (Cth) ss 48-5, 51-10; ACIS Administration Act 1999 (Cth) s 21; Agricultural and Veterinary Chemicals Code (Cth) ss 11, 27, 49, 110, 122; Customs Act 1901 (Cth) s 205B; Insurance Act 1973 (Cth) ss 95, 118; Pay-Roll Tax Assessment Act 1941 (Cth) s 65; Pay-Roll Tax (Territories) Assessment Act 1971 (Cth) s 64; Sales Tax Assessment Act (No 1) 1930 (Cth) s 68; Securities Industry Act 1980 (Cth) s 75; Tobacco Charges Assessment Act 1955 (Cth) s 40; Wool Tax (Administration) Act 1964 (Cth) s 86.

[107] Rights upon citizens: Circuit Layouts Act 1989 (Cth) s 5; Copyright Act 1968 (Cth) ss 32, 84, 184, 248U; Defence Act 1903 (Cth) s 116F; Defence (Visiting Forces) Act 1963 (Cth) s 8(2); Diplomatic Privileges and Immunities Act 1967 (Cth) s 11; Environment Protection and Biodiversity Conservation Act 1999 (Cth) ss 5, 224, 475, 487; Hazardous Waste (Regulation of Exports and Imports) Act 1989 (Cth) s 58A; Migration Act 1958 (Cth) ss 84, 87; Navigation Act 1912 (Cth) ss 178, 180; Passports Act 1938 (Cth) s 7; Public Lending Rights Act 1985 (Cth) s 3; Sales Tax Assessment Act 1992 (Cth) s 91G(7); Telecommunications (Interception) Act 1979 (Cth) s 11A; Torres Strait Fisheries Act 1984 (Cth) s 3; Trade Practices Act 1974 (Cth) pt X.

Rights upon residents: Bankruptcy Act 1966 (Cth) ss 56A, 188; Broadcasting Services Act 1992 (Cth) s 25; Civil Aviation (Carriers’ Liability) Act 1959 (Cth) ss 12, 35; Civil Aviation (Damage by Aircraft) Act 1958 (Cth) s 11; Navigation Act 1912 (Cth) s 10.

Rights upon non-citizens: Crimes Act 1914 (Cth) s 23P; Fisheries Act 1952 (Cth) ss 12S, 16A.

Rights upon non-residents: Family Law Act 1975 (Cth) s 104(3); Small Superannuation Accounts Act 1995 (Cth) s 67.

Rights upon others: Copyright Act 1968 (Cth) ss 211, 220; Patents Act 1990 (Cth) s 15.

[108] Administrative Decisions (Judicial Review) Act 1977 (Cth) sch 2, para (d)(iii); Australian Law Reform Commission Act 1996 (Cth) s 24; Australian Security Intelligence Organization Act 1979 (Cth) ss 27A, 36, 92C; Child Support (Assessment) Act 1989 (Cth) s 83; Crimes (Currency) Act 1981 (Cth) s 23; Crimes (Hostages) Act 1989 (Cth) s 15; Crimes (Internationally Protected Persons) Act 1976 (Cth) s 11; Fisheries Act 1952 (Cth) s 13BA(2)(d); Fisheries Management Act 1991 (Cth) s 102(3)(b); Immigration (Education) Act 1971 (Cth) s 4; Immigration (Guardianship of Children) Act 1946 (Cth) s 4AA; International Arbitration Act 1974 (Cth) ss 7(2), 8; International Tax Agreements Act 1953 (Cth); International Transfer of Prisoners Act 1997 (Cth) ss 13, 57; Judiciary Act 1903 (Cth) s 29; Life Insurance Act 1995 (Cth) s 18; Marriage Act 1961 (Cth) ss 10(2), 768, 88D(2)(b), 88D(3), 88E(2), 89(3), 91; Patents Act 1990 (Cth) s 219; Petroleum (Australia–Indonesia Zone of Cooperation) Act 1990 (Cth) s 10; Privacy Act 1988 (Cth) s 41; Registration of Deaths Abroad Act 1984 (Cth); Shipping Registration Act 1981 (Cth) s 12; States Grants (Primary and Secondary Education Assistance) Act 1992 (Cth) ss 62–65B, sch 6; States Grants (Primary and Secondary Education Assistance) Act 1996 (Cth) ss 734, sch 9; States Grants (Technical and Further Education Assistance) Act 1989 (Cth) s 12; States Grants (Tertiary Education Assistance) Act 1987 (Cth) s 25; Student Assistance Act 1973 (Cth) s 44A; Taxation Administration Act 1953 (Cth) s 14S; Whale Protection Act 1980 (Cth) s 31.

[109] A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) ss 715, 81, 153, 171; Admiralty Act 1988 (Cth) s 5; Bankruptcy Act 1966 (Cth) s 7; Child Care Payments Act 1997 (Cth) ss 735, 1257, 143, 228; Companies (Acquisition of Shares) Act 1980 (Cth) s 10; Companies Act 1981 (Cth) ss 3, 135; Corporations Law ss 110D, 766I; Crimes (Currency) Act 1981 (Cth) s 5; Crimes (Hostages) Act 1989 (Cth) s 5; Crimes (Internationally Protected Persons) Act 1976 (Cth) s 5; Crimes (Ships and Fixed Platforms) Act 1992 (Cth) s 5; Farm Household Support Act 1992 (Cth) ss 41, 42; Foreign Acquisitions and Takeovers Act 1975 (Cth) s 17; Geneva Conventions Act 1957 (Cth) s 7; Judiciary Act 1903 (Cth) s 47; Offshore Minerals Act 1994 (Cth) s 37; Passports Act 1938 (Cth) s 4A; Patents Act 1990 (Cth) s 15; Petroleum (Submerged Lands) Act 1967 (Cth) s 8; Plant Breeder’s Rights Act 1994 (Cth) s 24; Sea Installations Act 1987 (Cth) s 11; Social Security Act 1991 (Cth) ss 68–9, 132–3, 172–3, 222–3, 341–2, 389–90, 408JB–JC, 506D–E, 561B–C, 586B–C, 657–8, 660XIC–XID, 660YIC–YID, 727–8, 759–60, 771MC–MD, 808–9, 872–3, 900AZL–AZM, 900Z, 984–5, 1023–4, 1054–5, 1061PZQ–PZR, 1061Y–Z, 1061ZK–ZL, 1310, 1230B, 1343, pt 8.1; Student Assistance Act 1973 (Cth) s 342; Veterans’ Entitlements Act 1986 (Cth) ss 118ZI–ZJ; War Crimes Act 1945 (Cth) ss 5, 6.

[110] Australian Institute of Marine Science Act 1972 (Cth) s 33.

[111] Australian Centre for International Agricultural Research Act 1982 (Cth) s 19.

[112] Reserve Bank Act 1959 (Cth) s 68.

[113] Marriage Act 1961 (Cth) s 29.

[114] Migration Act 1958 (Cth) s 294.

[115] Public Lending Rights Act 1985 (Cth) s 3.

[116] See Commonwealth Electoral Act 1918 (Cth) ss 93, 94, 94A, 95, 163, 193. Note that s 163 requires that Members of Parliament must be citizens. There is also the requirement in s 44 of the Constitution that Members of Parliament not be citizens of another country. See above nn 8990 and accompanying text.

[117] Commonwealth Electoral Act 1918 (Cth) s 39(b).

[118] See Commonwealth Electoral Act 1918 (Cth) s 84 (arrangements with States, and the qualifications for electors and voting in each of the State and Territory Electoral Acts); Electoral Act 1992 (ACT) s 128; Parliamentary Electorates and Elections Act 1912 (NSW) s 20; Electoral Act 1995 (NT) s 28; Electoral Act 1992 (Qld) s 101; Electoral Act 1985 (SA) s 29; Electoral Act 1985 (Tas) s 29; Constitution Act Amendment Act 1958 (Vic) s 50; Electoral Act 1907 (WA) s 17.

[119] See further Rubenstein, ‘Citizenship in Australia’, above n 10, 519–20.

[120] Ibid. See Electoral Act 1993 (NZ) s 74.

[121] Note also the constitutional discussions on this topic pursuant to s 44(i) of the Constitution, in relation to singular citizenship as a necessary precondition to election to Parliament: see above n 15.

[122] Note, however, the proposal explained in the conclusion regarding ‘virtual electorate’ in South Australia: see below n 199 and accompanying text.

[123] Dauvergne, above n 78.

[124] Migration Act 1958 (Cth) s 4 states:

Object of Act

(1) The object of this Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.

(2) To advance its object, this Act provides for visas permitting non-citizens to enter or remain in Australia and the Parliament intends that this Act be the only source of the right of non-citizens to so enter or remain.

(3) To advance its object, this Act requires persons, whether citizens or non-citizens, entering Australia to identify themselves so that the Commonwealth government can know who are the non-citizens so entering.

(4) To advance its object, this Act provides for the removal or deportation from Australia of non-citizens whose presence in Australia is not permitted by this Act.

[125] Migration Act 1958 (Cth) ss 198206.

[126] Migration Act 1958 (Cth) ss 17683, 18897, 208–24.

[127] See below nn 165166 and accompanying text.

[128] See cases referred to in Part II which look at the first 50 years of citizenship, including Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277, and cases in the last 50 years, such as Nolan v Minister for Immigration and Ethnic Affairs [1988] HCA 45; (1988) 165 CLR 178; Pochi v Macphee [1982] HCA 60; (1982) 151 CLR 101; Lim (1992) 176 CLR 1; and Teoh [1995] HCA 20; (1995) 183 CLR 273. All are reflective of the centrality of the Migration Act 1958 (Cth) to citizenship and exclusion in 20th century Australia.

[129] The Social Security Legislation Amendment (Newly Arrived Resident’s Waiting Periods and Other Measures) Act 1997 (Cth) ss 7(4), 7(6), 23(1), 199(1), 201, 408BA, 410, 623A, 660YCA, 696B, 729(2), 732, 739, 771HC, 771HN, 771HNB, 921, 922, 1036(aa), 1039, 1061ZA amended the Social Security Act 1991 (Cth) to impose a 104 week waiting period for certain social security benefits. It applies to migrants who arrived on or after 1 December 1997, or who were granted permanent residence on or after 1 December 1996.

[130] A New Tax System (Family Assistance) Act 1999 (Cth) ss 21, 22, 34, 41, 43, 49.

[131] Note, however, the restrictions in certain provisions regarding the waiting period for recent permanent residents: see above n 129.

[132] Sections 36H, 37H, 38H and 45M.

[133] Ruth Rubio-Marin, Immigration as a Democratic Challenge: Citizenship and Inclusion in Germany and the United States (2000).

[134] Bosniak, above n 5, 966.

[135] Ibid 973–4.

[136] Rogers Smith, Civic Ideals, above n 13.

[137] Spiro, above n 12, 599.

[138] Defence Act 1903 (Cth) s 34.

[139] Defence Act 1903 (Cth) s 61C. Exemptions are granted on the basis of mental or physical disability (s 61A(1)(a)). It does not apply to persons whose presence in Australia is solely related to employment in the service of a foreign government, or to a prescribed official of an international organisation, or to a member of the Defence Force.

[140] For a more detailed discussion of the historical developments, see Ann-Mari Jordens, Redefining Australians: Immigration, Citizenship and National Identity (1995) ch 8.

[141] [1945] HCA 3; (1945) 70 CLR 60.

[142] National Security Act 1939–1943 (Cth) s 13A (emphasis added).

[143] National Security (Aliens Service) Regulations 1942 (Cth) s 13A.

[144] Polites v Commonwealth [1945] HCA 3; (1945) 70 CLR 60, 73.

[145] Although from feminist perspectives, it raises issues of exclusivity based on gender.

[146] This section develops and extends Kim Rubenstein, ‘The Role of the High Court in Shaping Citizenship’ (Paper presented at the conference ‘Individual, Community, Nation: 50 Years of Australian Citizenship’, the University of Melbourne, Melbourne, 22 July 1999) <http://www.law.unimelb.edu.au/events/citizen> at 31 December 2000 (copy on file with author). A revised version of the conference paper has also been published as a chapter ‘The High Court of Australia and the Legal Dimensions of Citizenship’ in Kim Rubenstein (ed), Individual, Community, Nation: 50 Years of Australian Citizenship (2000) 21.

[147] This research involved identifying all of the reported High Court cases and identifying where the word citizen appeared. Over 250 cases were found as at 31 December 1999.

[148] (1992) 176 CLR 1, 54.

[149] Both cases involved a range of arguments linked to the ‘subject’ status of the deportee.

[150] [1982] HCA 60; (1982) 151 CLR 101.

[151] Ibid 109. This was affirmed in Nolan v Minister for Immigration and Ethnic Affairs [1988] HCA 45; (1988) 165 CLR 178. See especially at 189 (Gaudron J).

[152] Pochi v Macphee [1982] HCA 60; (1982) 151 CLR 101, 109–10.

[153] [1988] HCA 45; (1988) 165 CLR 178.

[154] Ibid 183.

[155] Ibid 189.

[156] Leslie Zines, The High Court and the Constitution (4th ed, 1997) 21. Four members of the High Court also confirmed this approach in its interpretation of a ‘foreign power’ in s 44(i) of the Constitution in Sue v Hill [1999] HCA 30; (1999) 163 ALR 648, 666 (Gleeson CJ, Gummow and Hayne JJ), 695 (Gaudron J). The exact point at which British subjects lost their non-alien status has not been clarified by the High Court.

[157] [1989] HCA 53; (1989) 168 CLR 461.

[158] Ibid 485.

[159] Ibid 505.

[160] Ibid 522.

[161] Ibid.

[162] Ibid 541.

[163] Ibid 554.

[164] See above nn 4245 and accompanying text.

[165] (1988) 165 CLR 462.

[166] Ibid 469.

[167] [1995] HCA 20; (1995) 183 CLR 273, 303–5 (Gaudron J).

[168] Ibid 304 (citation omitted).

[169] Ibid.

[170] Linda Bosniak discusses this as ‘citizenship of aliens’ so as to make clear that ‘status and rights are to some degree independent, since many of what are commonly called the rights of citizenship are not confined to persons possessing the status of citizenship at all’: Bosniak, above n 5, 978.

[171] Wade v NSW Rutile Mining Company [1969] HCA 28; (1970) 121 CLR 177, 181.

[172] [1992] HCA 45; (1992) 177 CLR 106.

[173] Ibid 136.

[174] [1987] HCA 12; (1987) 162 CLR 514.

[175] Ibid 521.

[176] Actors and Announcers Equity Association v Fontana Films [1982] HCA 23; (1982) 150 CLR 169, 181–2.

[177] [1981] HCA 59; (1981) 150 CLR 225.

[178] Ibid 252.

[179] Esmond Motors v Commonwealth [1970] HCA 15; (1970) 120 CLR 463.

[180] Ibid 468.

[181] Geelong Harbour Trust Commissioners v Gibbs, Bright & Co [1970] HCA 16; (1970) 122 CLR 504, 516.

[182] Mortimer v Brown [1970] HCA 4; (1970) 122 CLR 493, 495; cited with approval in Hamilton v Oades [1989] HCA 21; (1989) 166 CLR 486, 514 (Toohey J).

[183] Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54, 75. See also reference to this passage by Dawson J in Cleland v The Queen [1982] HCA 67; (1982) 151 CLR 1, 32.

[184] Ousley v The Queen [1997] HCA 49; (1997) 192 CLR 69, 105 (McHugh J), 120 (Gummow J).

[185] Ibid 142.

[186] Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation [1982] HCA 31; (1982) 152 CLR 25, 89.

[187] North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595, 635, citing Clough v Leahy (1904) 2 CLR 13, 156–7 (Griffith CJ).

[188] See R v Marks; Ex parte Australian Building Construction Employees Builders Labourers’ Federation [1981] HCA 33; (1981) 147 CLR 471, 484.

[189] Carter v Managing Partner, Northmore Hale Davey & Leake (1995) 183 CLR 121, 162.

[190] [1984] HCA 67; (1984) 156 CLR 532.

[191] Ibid 555.

[192] Although the more recent pronouncements of the Court regarding implied rights, as expressed in cases such as Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520, 567, would suggest that such an implication is unlikely.

[193] Note, however, that the Federal Court has not extended the same protection of natural justice, for instance, to unlawful non-citizens. See Wu v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 246, 294, where Nicholson J (Jenkinson J concurring at 247) explained that the Migration Act 1958 (Cth) denied the application of natural justice to detained persons. Carr J dissented on this point: at 271.

[194] See the discussion on Cunliffe v Commonwealth [1994] HCA 44; (1994) 182 CLR 272 in Rubenstein, ‘Citizenship in Australia’, above n 10, 515ff.

[195] TS Eliot, Burnt Norton, Four Quartets (first published 1959, reprinted 1991) 15.

[196] The terms of reference of the Australian Citizenship Council, which gave rise to its report, did not include any question relating to citizenship and the Constitution: Australian Citizenship Council, above n 3.

[197] Ibid 13.

[198] See, eg, Kim Rubenstein, ‘Citizenship in a Borderless World’ in Antony Anghie and Garry Sturgess (eds), Legal Visions of the 21st Century: Essays in Honour of Judge Christopher Weeramantry (1998) 183; Rubenstein and Adler, above n 4; Stephen Castles and Alastair Davidson, Citizenship and Migration: Globalization and the Politics of Belonging (2000).

[199] Government of South Australia, Our Plan: Virtual Electorate (2000) <http://www.ie2002.sa.gov.au/plan/ve_faq.htm> at 31 December 2000 (copy on file with author); and see also Selina Mitchell and Leila Henderson, ‘State Considers Virtual Electorates’, The Australian (Sydney), 22 August 2000, 33.


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