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Catherine Zhou[1]*
This article argues that the High Court of Australia has overlooked the racial dimensions that were critical to the passage of the aliens power at Federation and central to its discriminatory application in the years beyond. By tracing the legal history of s 51(xix) of the Australian Constitution, this article posits that subjecthood and race are dual dimensions of the history of alienage. It then contends that recognition of the role of race in the interpretive evolution of the aliens power has critical implications for its constitutional characterisation. Applying a racial lens to the interpretive divide in
Love v Commonwealth reveals that juristic classification is an untenable characterisation of the aliens power. This article concludes by reflecting on the ways that the racialisation of alienage can reorient constitutional fact-finding to accommodate a more expansive conception of political community, inclusive of self-identification and communal recognition.
Contents
The decision in Love v Commonwealth (‘Love’)[1] exposed a rift in the High Court of Australia’s characterisation of the aliens power.[2] While the minority found that the power was tied to statutory citizenship,[3] the majority characterised alienage by reference to its ordinary understanding.[4] The aliens power remains unmoored, lacking a coherent characterisation and positive definitional content. With changes to the composition of the High Court and the discontinuation of an appeal to overturn Love,[5] these questions remain unanswered. In Alexander v Minister for Home Affairs (‘Alexander’), this ongoing obscurity led Edelman J to declare that a series of decisions of the High Court has seen ‘an imperial march of the application of the aliens power ... capturing more and more members of the permanent population of the Commonwealth of Australia’.[6] The indeterminacy of constitutional alienage is particularly troubling given the expansive terms in which the aliens power is expressed: it permits laws that are ‘benevolent or repressive’, or ‘directed to any aspect of human activity’,[7] even if they contravene international law.[8] As such, Parliament is entitled to ‘enact special, discriminatory laws’ about aliens,[9] and preclude their access to the implied freedom of political communication[10] or to constitutional protections against ‘lengthy executive detention’.[11]
The aliens power now sustains increasingly significant concepts and legislation. Critically, s 51(xix) is the head of power which supports statutory citizenship.[12] While the Australian Constitution does not explicitly grant the Commonwealth a power over citizenship,[13] it is now a ‘settled position’ that
s 51(xix) empowers Parliament ‘to create and define the concept of Australian citizenship’.[14] As such, s 51(xix) is as much a source of regulation over statutory citizenship as it is over alienage. Before Love, the High Court held that the relationship between citizenship and alienage was dichotomous: ‘alien’ was seen as synonymous with ‘non-citizen’.[15] ‘Alienage’ has also been defined as the antonym of belonging and membership of the community,[16] but both definitions were qualified by reference to citizenship.[17] Accordingly, alienage has historically been subject to statutory control rather than substantive modes of belonging or community membership. In contrast, Love opens up the possibility of an intermediate category: the ‘non-citizen non-alien’.[18] The recognition of this category affirms that alienage is a constitutional concept, diverging from the statutory contingency which has previously characterised its interpretation.[19] These emerging tensions have destabilised the relationships between citizenship and non-citizenship, alienage and non-alienage, and belonging and community membership.
The concept of alienage is further problematised by the fact that it has both legal and sociological dimensions. Its language intrinsically calls attention to the ‘otherness’ of its subject,[20] ‘invok[ing] a racially, ethnically, and culturally specific image of the immigrant/foreigner’.[21] This ‘alien spectre’ is constructed and represented by circulating discourses,[22] and marked with historical meaning. Critical race theorists in the United States have accordingly challenged the dichotomy between alienage and race, highlighting the unstable boundaries between legal and social dimensions of meaning.[23] In Australia, however, the High Court has largely refused to critically engage with the racial origins of the aliens power, dismissing race as irrelevant to the task of construction.[24]
This article refutes the High Court’s habitual dismissal of race in characterisations of constitutional alienage. It argues that the answer to resolving the competing perspectives of the High Court in Love rests on the critical recognition of race as a legitimated and institutionalised aspect of alienage both before and after Federation. Race is enmeshed in the Australian Constitution. It is a head of power in s 51(xxvi) of the Australian Constitution that enables the Commonwealth to make laws with respect to ‘[t]he people of any race for whom it is deemed necessary to make special laws’ — a power with which the aliens power is inextricably interlinked.[25] It is also a sociological force connected to the creation of s 51(xix) of the Australian Constitution — with racially exclusionary desires motivating the introduction of the aliens power.[26] Through this history, race indelibly suffuses the meaning of the aliens power and prevents it from being read in an entirely formalist or colourblind capacity, or equated to non-citizenship. Constitutional characterisation must therefore follow from a reckoning with race and not an ignorance of its influence.
This article is organised into three main parts. Part II recasts the history of the aliens power with two primary objectives. First, it seeks to prove that the racialisation of ‘alien’ before and after Federation transcended the subjectivity of the framers, becoming institutionalised within the interpretation and application of the aliens power. Second, it argues that the High Court has turned to a more legalistic and formalist conception of the aliens power, without ever explicitly confronting its racial history. Part III outlines current divisions in the constitutional characterisation of the aliens power, as expressed in Love and affirmed in subsequent decisions. It then challenges the justifications for characterising the aliens power as a juristic classification by reference to its racial origins. Part IV concludes that reckoning with the racial history of the aliens power can anchor alienage to a more expansive conception of community, using a comparison to the legal definition of race to illustrate the ways in which changing societal attitudes have directly affected the characterisation and application of the Australian Constitution. Inherent in this reckoning is the imperative to account for self-identification and communal recognition in demarcating the boundaries of belonging.
At Federation, the term ‘alien’ was associated with both subjecthood and race.[27] As such, early understandings of the aliens power included both meanings. Texts and commentaries preferred to define alienage in terms of subjecthood. In 1896, Dicey stated that alienage was antonymic to subjecthood.[28] ‘Alien’ meant ‘any person who is not a British subject’, and ‘British subject’ meant ‘any person who owes permanent allegiance to the Crown’.[29] In 1901, Quick and Garran adopted this definition, stating that ‘[i]n English law an alien may be variously defined as a person who owes allegiance to a foreign State, who is born out of the jurisdiction of the Queen, or who is not a British subject’.[30] In 1902, Salmond asserted that a person ‘is a subject of the British empire in its unity, or else [they are] an alien’.[31]
Despite this interpretation, the term ‘alien’ was most often used in a racial manner, even by the writers of these texts themselves. As Prince argues, the concept of ‘alien’ in the 19th and 20th centuries was a default description for non-white inhabitants of Australia but not for European colonists.[32] Prince observes that this racialisation of the term ‘alien’ was subsequently adopted by Quick and Garran.[33] Within The Annotated Constitution of the Australian Commonwealth, Quick and Garran twice used the term ‘alien race’.[34] As Sawer states, this term does not refer to ‘“alien” in any sense of nationality law, but merely people of a “race” considered different from the Anglo-Saxon-Scottish-Welsh-Cornish-Irish-Norman ... mixture, derived from the United Kingdom’.[35] Quick and Garran also stated that s 51(xix) of the Australian Constitution would enable the Parliament ‘to prohibit Chinamen, whether naturalized or not, from working in mines’.[36] Given that naturalisation was supposedly the process by which alienage ceased, this statement suggested that s 51(xix) could encompass subjects based on their race, regardless of whether or not they were formally subjects.[37]
The Convention Debates are replete with similar conflations of alienage and race.[38] Quick stated that the race power ‘[gave] the Federal Parliament control over the immigration of aliens’.[39] Other delegates also used the concepts of ‘alien’ and ‘race’ conjunctively in the term ‘alien rac[e]’.[40] Symon stated that ‘coloured races’ are ‘those whom we describe as aliens’.[41] The expression ‘alien races’ was used interchangeably with ‘coloured races’,[42] and as a counterpoint to ‘Australians and the British race’.[43] Further, the purpose of powers over both ‘aliens’ and ‘race’ was to regulate race. While powers over aliens related to ‘the introduction of foreign coloured races’, the race power related to ‘people of certain races when they [were] within the jurisdiction of the Commonwealth’.[44] These powers were viewed as ‘complementary’.[45] Barton cited the ‘preservation of the continent’ as a justification for legislative powers over both aliens and races.[46] In his view, ‘the preservation of the racial character of the white population’ was to be effected through legislating with regard to the introduction of ‘aliens’ into Australia and to people of ‘races’ already settled in Australia.[47] This accorded with the broader view that a primary role of the new Commonwealth would be to implement the White Australia policy.[48]
The Convention Debates also undermine the prevailing view that alienage at Federation was based on British subjecthood. The framers specifically contemplated targeting non-white British subjects as ‘aliens on arrival’,[49] despite being aware that non-white races were capable of being British subjects. Braddon stated that ‘it is quite possible that it may come to be a grave question whether the Hindostanese [sic] who are British subjects shall be allowed to continue the practice of hawking’.[50] Braddon also considered that ‘some 150,000,000 British subjects’ in India were nonetheless ‘people of alien races’.[51] These statements reflect a widespread understanding that race was more dispositive of alienage than subjecthood. Many colonies viewed race as the overriding consideration in alienage, deciding that ‘racial homogeneity and national unity were more important than British citizenship’.[52]
The aliens power itself only received ‘cursory attention’ during the Convention Debates,[53] although it was referenced during discussion of other powers.[54] As Prince contends, the delegates viewed the ‘“immigration and emigration” and “races” powers as key weapons for preservation of a “white Australia”’ because this would enable the exclusion of ‘aliens’.[55] Prince posits that, in contrast, the aliens power was an arguably ‘technical’ provision focused on the ‘naturalisation of’ aliens.[56] Nonetheless, the meaning of ‘aliens’ is equally significant both because it would determine the scope of naturalisation and because of the more expansive interpretations of the aliens power which have emerged after the Convention Debates. It is notable that the choice of the term ‘naturalization and aliens’ for the Australian Constitution was an express departure from previous drafts, including the Australasian Naturalisation Act 1897, 60 Vict, which included a provision for the ‘naturalisation of aliens’.[57] And the High Court has since held that the choice of the term ‘naturalization and aliens’ embraces a more general power that is not limited to naturalisation.[58] The ambit of this power is at odds with a narrower focus on ‘naturalisation of’ aliens in the years prior to Federation.[59] Instead, it links the interpretation of the aliens power with the way that the broader concept of alienage was understood by the framers. That understanding was deeply racialised.
Many delegates in attendance at the Convention Debates, including Griffith, Barton, O’Connor, Isaacs and Higgins, were later appointed to the High Court.[60] Their racial understandings of alienage were subsequently imprinted onto early decisions of the Court. In each of these cases, the High Court considered that an ethno-racial term was tantamount to alienage, without referring to subjecthood, nationality, positive law or a lack of naturalisation.
In Robtelmes v Brenan (‘Robtelmes’), the High Court held that the aliens power validly authorised the deportation of Pacific Islanders under the Pacific Island Labourers Act 1901, 1 Edw 7 (‘Pacific Island Labourers Act 1901’).[61] The Court’s approach reveals that their understanding of the term ‘alien’ was racialised.[62] Chief Justice Griffith said that it was ‘indisputable’ that Pacific Islanders were aliens.[63] Justice Barton determined that the right to legislate was supported by the aliens power and the external affairs power, but that it was the external affairs power that enabled Parliament to legislate ‘with respect to the exclusion or deportation of subjects of other powers’.[64] No corresponding link was drawn between subjecthood and alienage. Justice Barton also suggested that the race power could authorise deportation.[65] The racialisation of alienage in Robtelmes is confirmed by commentary surrounding the legislation. In 1903, Deakin argued that allowing Pacific Islanders to remain in Queensland would ‘impair the principle of a “White Australia”’ and that the Pacific Island Labourers Act 1901 was justified on the basis of ‘preservation of’ the ‘purity of race’.[66]
‘Pacific Islander’ is an ethno-racial term, not a nationality. It says nothing about subjecthood and makes no reference to any legal status enshrined in British or Australian law. It expressly ignores that some Pacific Islanders were British subjects at the time, being from British colonies such as Fiji and British New Guinea.[67] The desire to constitutionalise a power to deal with Pacific Islander labourers was originally central to the inclusion of the race power,[68] but Robtelmes ultimately institutionalised this racial purpose in the aliens power. Justice Barton doubled down on this interpretation a year later in Ah Yin v Christie, [69] in which he identified that Robtelmes concerned ‘an alien — a Pacific Islander’.[70] These decisions evidence the judicial legitimation of the racial application of the aliens power.
Lower courts also reinforced the association between race and alienage. In a 1919 application made to the Queensland Court of Industrial Arbitration for the exclusion of ‘coloured aliens’ from the sugar industry, the Southern District Secretary of the Australian Workers Union stated that the main purpose of the application was to ‘get rid of the aliens’, being ‘Chinese, Japanese, [and] Afghans’.[71] This answer was unchallenged by the parties or the Court; instead, the discussion proceeded to consider which of these ‘aliens’ posed a ‘menace’ to the industry.[72] As Prince establishes, this association was furthered in Brown v See Chin; Ex parte See Chin.[73] The Supreme Court of Queensland upheld a conviction under the Sugar Cultivation Act 1913, 4 Geo V, for employing a person who had not first obtained a certificate of having passed the dictation test — a charge described as ‘employing coloured aliens’.[74]
Subjecthood was not prominent in any of the High Court’s considerations of alienage until World War II, during which the High Court began to explicitly distinguish between categories of aliens (ie ‘allied aliens’, ‘neutral aliens’ and ‘enemy aliens’) and ‘British subjects’.[75] Nonetheless, these distinctions did not displace racial alienage. For example, Prince notes that the term ‘enemy alien’ was used against naturalised persons[76] and Australian-born persons of non-white races, such as ‘Australian-born Japanese’.[77]
After the end of the World War II, the High Court considered the validity of s 4(1)(a) of the War-Time Refugees Removal Act 1949 (Cth) in Koon Wing Lau v Calwell (‘Koon Wing Lau’).[78] The plaintiffs were ‘of Chinese race’,[79] but not all the plaintiffs were considered aliens. Most of the plaintiffs alleged that they were British subjects by virtue of their birth in Hong Kong.[80] Per Latham CJ, these plaintiffs would ‘not fall within the class of persons described in
[s 4(1)(a)]’ if born in Hong Kong.[81]
Koon Wing Lau is a departure from widespread assumptions that all persons racialised as Chinese were aliens. Willard’s historical account suggested that the Chinese were seen to be ‘permanently alien’[82] — not because they had not been naturalised, but because they were ‘uninfluenced by the ideas and customs of the people amongst whom they had settled’.[83] In his commentary on Willard, Prince observes that descriptions of the Chinese as an ‘alien race’ subsisted despite the fact that ethnically Chinese immigrants from British colonies in Hong Kong and the Straits Settlements would not be aliens under a definition anchored to subjecthood.[84] Koon Wing Lau represents a shift away from this understanding and a recognition of different statuses of subjecthood underneath the umbrella of the ‘Chinese race’. However, the High Court did not renege on its earlier decisions or expressly challenge previous racial interpretations of the aliens power. Particularly, no explicit statement of the Court addressed or challenged the assumptions underlying Robtelmes or refuted the racialisation of the term ‘enemy alien’.
In conjunction with judicial decisions, alienage was being racialised in a range of other legislative contexts in service of the White Australia policy.[85] The White Australia policy was formalised at Federation through a series of laws facilitating racially exclusionary immigration restrictions in order to preserve racial purity.[86] Deakin described the application of seemingly racially neutral laws in an article for The Morning Post, in which he stated that ‘[i]n fact, and in effect, our colourless laws are administered so as to draw a deep colour line of demarcation between Caucasians and all other races’.[87]
Deakin’s intent is reflected in state legislatures, and particularly in Queensland. At the time, attempts to regulate race in Australia were being blocked by Britain based on a refusal to assent to openly discriminatory legislation.[88] As set out by Prince, royal assent was withheld from a proposal to include British Indians in immigration restriction laws.[89] The Queensland Parliament responded by passing legislation using the term ‘alien’ and targeting non-European races with the application of that legislation — a mechanism which received royal assent.[90] This included legislation mandating a ‘dictation test’, which — although directed at ‘aliens’ — ‘operate[d] specifically, in fact if not in form, against Asiatic labourers’.[91] Between Federation and World War II, the Queensland Parliament approved 36 laws aimed at ‘aliens’ in furtherance of the White Australia policy.[92]
This interpretation of alienage was not localised to Queensland. Former Solicitor-General of the Commonwealth, KH Bailey, wrote that the dictation test ‘is clearly traceable to the Commonwealth Immigration Acts’,[93] and that ‘the legal discriminations against resident aliens in Australia are really the corollary of the immigration policy of the Commonwealth’.[94] The Immigration Restriction Act 1901, 1 Edw 5, enshrined an analogous dictation test.[95] Willard observes that ‘except in one or two isolated instances the test has never been applied to Europeans’.[96] The racialisation of alienage permeated each level of the federal structure, evidencing a consistent and systematic racial application of alienage.
The High Court has generally dismissed racial history in interpreting the aliens power. In Singh v Commonwealth (‘Singh’), for example, Gleeson CJ dismissed the relevance of race on the basis that the subjective beliefs or intentions of the framers were not relevant facts in constructing s 51(xix) of the Australian Constitution.[97] In Love, Nettle J observed that alienage is ‘oblivious of race as that concept is now understood’.[98]
The extent of the racial application of the aliens power is significantly understated. Although history should not be used to substitute subjective intention for meaning,[99] the High Court has recognised since Cole v Whitfield that historical materials such as the Convention Debates are relevant insofar as they identify ‘the contemporary meaning of language used, the subject to which that language was directed and the nature and objectives of the movement towards federation’.[100] It has been recognised in the context of the aliens power that the use of ‘constitutional expressions’ at Federation has a bearing on the inquiry of constitutional construction.[101]
The above history transcends ‘the subjective beliefs or intentions’ of the framers,[102] representing the legitimation of racial application as a foundation of Commonwealth power.[103] The Convention Debates include examples of alienage being explicitly defined as racial in nature.[104] The preservation of ‘racial purity’ was a key objective of powers directed at ‘aliens’ and drove the movement towards Federation.[105] A threat to that purity was precisely the constitutional ‘mischief and defect’ which historical facts can be employed to ascertain.[106] Further, the term ‘alien’ was consistently racialised by multiple delegates at the Convention Debates — including by future members of the High Court — surviving even where no subjective belief or intention was being expressed.
The aliens power can also be compared with the race power in s 51(xxvi) of the Australian Constitution, which empowers Parliament to make laws with respect to ‘the people of any race’. The High Court has recognised the relevance of the Convention Debates in establishing that a discriminatory licence inhered in the meaning of the race power at Federation,[107] specifically in the context of the terms ‘coloured races’[108] and ‘alien races’.[109] That degree of recognition has never been extended to interpretations of the aliens power, despite the fact that the exact same terminology was used to justify powers targeted toward ‘aliens’ and ‘race’.
Outside of the Convention Debates, the institutionalisation of racial alienage by Australian legislatures and the judiciary overshadowed the early decades of the Commonwealth. When the Pacific Island Labourers Act 1901 was challenged before the High Court, its survival represented the legitimation of the racial application of the aliens power. As Prince notes, the longevity of Robtelmes has subsisted, with the Federal Court citing it as ‘good law’ in the 21st century.[110] Equally, when Queensland used the language of alienage to obfuscate its discriminatory practices, its ‘linguistic mechanism’ was only effective because the contemporary legal meaning of alienage was capable of applying to both subjecthood and race.[111] Its legitimacy derived from the duality of the definition of alienage.[112] By quarantining racial application to the subjective beliefs or intentions of the framers, the High Court has ignored the codification and recurrence of race throughout the history of the aliens power. Accounting for that history is the Court’s responsibility.[113]
Simultaneously, the importance of British subjecthood was diminishing in Australia. A series of constitutional and political changes radically reframed Australia’s relationship to the United Kingdom, including the Balfour Declaration of the Imperial Conference of 1926[114] and the Statute of Westminster 1931 (Imp) 22 & 23 Geo 5, c 4.[115] In 1948, these events resulted in the parallel passage of the British Nationality Act 1948, 11 & 12 Geo 6, c 56 and the Nationality and Citizenship Act 1948 (Cth) (‘Australian Citizenship Act 1948’).[116] These events ignited a series of decisions on the application of the aliens power to British subjects, beginning with Pochi v Macphee (‘Pochi’) in 1982.[117] These decisions affirmed an association between alienage and non-citizenship.
In Pochi, Gibbs CJ ruled that the scope of the power conferred by s 51(xix) of the Australian Constitution was ‘not determined by the British Nationality Acts of the United Kingdom’, and that British subjecthood had ‘lost much of its former significance to Australian citizens’.[118] Consequently, Gibbs CJ decided that British subjects were capable of being aliens.[119] Implicit in these statements was the acknowledgment that the status of British subject had formerly been of significance to non-alienage at a time when every Commonwealth citizen was believed to be a British subject.
The Court did not provide a positive or exhaustive definition of ‘alien’, stating instead that Parliament could ‘treat as an alien any person who was born outside Australia, whose parents were not Australians, and who ha[d] not been naturalized as an Australian’.[120] Further, Murphy J expressed that the concept of ‘alien’ had not been explored by the parties to his satisfaction.[121] Nonetheless, an association between alienage and non-citizenship was emerging. In rejecting the argument that total absorption into the Australian community would exclude a person from the reach of the aliens power,[122] Gibbs CJ stated that ‘[i]t was well settled at common law that naturalization could only be achieved by Act of Parliament’.[123] By treating naturalisation as the only avenue for the cessation of alienage, Gibbs CJ effectively equated alienage with statutory non-citizenship.[124]
Simultaneously, the High Court also recognised the existence of limitations on the aliens power. Specifically, the Court pronounced that Parliament ‘cannot, simply by giving its own definition of “alien”, expand the power under s 51(xix) to include persons who could not possibly answer the description of “aliens” in the ordinary understanding of the word’.[125] This constraint is referred to in this article as the ‘Pochi limit’.
In the High Court’s next examination of the aliens power in Nolan v Minister for Immigration and Ethnic Affairs (‘Nolan’), the consequences of Pochi’s failure to define alienage manifested in an interpretive divide that subsists in the Court today.
The majority in Nolan favoured the view that alienage was equivalent to non-citizenship,[126] outlining an etymological and relational definition of ‘alien’. From an etymological perspective, the ordinary meaning of ‘alien’ was conceptualised through various frames of belonging, including ‘belonging to another person or place’, a ‘lack of relationship with a country’,[127] or ‘not [being] a member of the community which constitutes the body politic of the nation’.[128] Used to describe a lack of relationship with country, alienage was ‘nothing more than a citizen or subject of a foreign state’.[129] Consequently, the majority concluded that a British subject who was not naturalised fell within the
reach of s 51(xix).[130] Although British subjects were not ‘aliens’ in 1900,[131]
citizenship superseded subjecthood when Australia became an independent sovereign nation.[132]
Justice Gaudron dissented. In her Honour’s view, ‘alien’ ought to be defined as ‘a person who is not a member of the community which constitutes the body politic of the nation state from whose perspective the question of alien status is to be determined’.[133] Admission to the community can depend on a particular criterion: if that criterion was citizenship, then alienage could be non-citizenship.[134] Justice Gaudron found that the plaintiff was not an alien because his residence in Australia preceded the date at which the criterion for admission to membership of the community constituting the body politic of Australia ‘changed from allegiance to the Crown to citizenship involving allegiance to the Crown in right of Australia’.[135] The introduction of statutory citizenship in the Australian Citizenship Act 1948 was insufficient to disrupt the constitutional meaning of ‘alien’[136] because it did not precipitate a substantive sociopolitical change in the relationship between individuals and the community constituting the body politic of Australia.[137] That relationship, as opposed to statute, was the central determinant of the constitutional meaning of alienage.[138]
All judges in Nolan ultimately concluded that citizenship was relevant to alienage. However, Gaudron J’s approach favoured ‘a more qualitative’ and ‘autonomous understanding’ of the aliens power.[139] It considered that citizenship is not an exhaustive definition of the aliens power but is the chosen criterion by which membership of the community is assessed.
In Re Patterson; Ex parte Taylor (‘Re Patterson’),[140] a majority of the High Court overruled Nolan in concluding that a non-citizen who had entered as a British subject was not an alien.[141] The divide in Nolan continued: while Gaudron J determined that Taylor was not an alien because he was a ‘member of the body politic constituting the Australian community’,[142] McHugh J decided Taylor was not an alien because he was a ‘British subject ... living in Australia at the commencement of the Royal Style and Titles Act 1973 (Cth)’.[143] Re Patterson signalled a return to a ‘more complex notion of Australian nationality’, rejecting the ‘supposed dichotomy’ between citizenship and alienage.[144]
That possibility was short-lived. In Shaw v Minister for Immigration and Multicultural Affairs (‘Shaw’), a majority of the High Court held that
Re Patterson did not overrule Nolan,[145] determining that a British subject was an alien in the constitutional sense at the time of their entry, as determined by the commencement of the Australian Citizenship Act 1948.[146]
The conclusion in Shaw created a new orthodoxy which associated alienage with non-citizenship. In Singh, Gleeson CJ stated that ‘alien’ ‘ha[d] become synonymous with non-citizen’.[147] The majority in the recent decision of Chetcuti v Commonwealth (‘Chetcuti’) also suggested that statutory citizenship overtook the common law of nationality and rendered ‘British subject’ a ‘derivative status, capable of enjoyment ... only in virtue of possession of ... citizenship’.[148] Conversely, Gordon J and Edelman J have continued to advocate for a meaning of alienage that is independent of citizenship.[149]
It is now accepted that ‘alien’ had no fixed legal meaning ascertainable by reference to the common law at Federation,[150] and no common law notion of ‘British subject’ was ever enshrined as the law of the Australian Constitution.[151] This is particularly so given that subjecthood was in flux following a Royal Commission on naturalisation and allegiance in 1868.[152] Yet the importance of British subjecthood is still the premise from which the High Court proceeds to characterise the aliens power in a formalist capacity — as fixed to the legal concept of citizenship. The recurrence of British subjecthood in decisions of the Court has consolidated its centrality in interpretations of the aliens power, at the expense of recognition of its racial history.
Subjecthood and race are dual dimensions of alienage. Both had a ‘substantial effect on the early application’ of s 51(xix) of the Australian Constitution.[153] Both prevented the other from exclusive monopolisation of the meaning of the aliens power at Federation and beyond. Particularly, the application of the aliens power to non-Caucasian British subjects through mechanisms legitimated by the Court prevented British subjecthood from being the sole criterion by which membership of the Australian community was assessed.[154] This is consistent with the view of Edelman, who has argued (extra-curially) that the racial application of alienage precludes ‘non-subject’ from being the essential meaning of the aliens power.[155] This practice also imbued the aliens power with a dual character: while one dimension of its application was largely determined by positive law, the other was based on racial understandings capable of existing outside of the legal system.
Like British subjecthood, the High Court now recognises that race is not dispositive of alienage. Many judges renounce that connection.[156] But unlike British subjecthood — and its decades-long history of contestation from Pochi to Chetcuti — the High Court has never reckoned with the racialisation of the aliens power. As the above chronology demonstrates, the assumed centrality of subjecthood was not a longstanding interpretation of the aliens power in Australia prior to Pochi. Rather, the relevance of subjecthood was constituted and affirmed by that series of decisions.
Analysis of the historical coexistence of race and subjecthood is crucial to the present characterisation of the aliens power. As a continuation of a formalist conception of alienage, citizenship is an answer to subjecthood. In contrast, the High Court has never answered to the racial history of the aliens power, and a framework of community membership grounded solely in citizenship is fundamentally unable to do so.
In the present day, the High Court remains divided on the constitutional characterisation of the aliens power. This divergence was most prominently demonstrated in Love.
In Love, the plaintiffs, Mr Love and Mr Thoms, challenged their removal from Australia following visa cancellations by a delegate of the Minister of Home Affairs under s 501(3A) of the Migration Act 1958 (Cth).[157] Neither plaintiff was an Australian citizen, but both plaintiffs were Aboriginal persons. Mr Love was a descendant of the Kamilaroi group, and Mr Thoms was a member of the Gunggari People and a common law holder of native title.[158] The plaintiffs contended that they were ‘non-citizen, non-alien’ because they were Aboriginal persons.[159] A majority of the Court ruled that Aboriginal persons are beyond the term ‘alien’ in s 51(xix) of the Australian Constitution.[160] Although their precise formulations of the aliens power differed, each judge in the majority favoured an approach grounded in ordinary understanding. Justice Gordon argued that ‘alien’ referred to ‘otherness, being an “outsider”’, or ‘foreignness’.[161] Justice Edelman defined ‘alien’ as being a ‘foreigner to the Australian political community’.[162] Justice Nettle stated that the ordinary understanding of ‘alien’ related to owing allegiance to another sovereign power.[163] Justice Bell determined that ‘alien’ can be traced to ‘belonging to another person or place’.[164] These definitions echoed the etymological understandings of alienage referred to by the Court in Nolan,[165] although the majority in Love did not consider that the ordinary understanding of alienage should be evaluated by reference to the criterion of citizenship. The majority also agreed (albeit implicitly) that non-constitutional concepts, such as statute, a historical common law position or foreign law, cannot wholly determine the scope of a head of power.[166] Pursuant to this interpretive approach, the majority determined that Aboriginal persons were not aliens to Australia because they possessed a ‘cultural and spiritual’ connection to their traditional lands,[167] and because of the common law’s acknowledgment of the traditional laws and customs of Aboriginal societies.[168] However, the majority did not examine the role of race in the historical interpretation of the aliens power. Only Edelman J considered that the application of the meaning of alien incorporated race
at Federation.[169]
In contrast, Kiefel CJ, Gageler J and Keane J determined that Aboriginal persons were capable of being aliens.[170] Concerns about race recurred throughout their reasoning. Members of the minority suggested that an implication of race in s 51(xix) of the Australian Constitution would be ‘problematic’,[171] and that it is ‘doubtful whether the adoption of ... a discrimen [of race] is open to the Court as a matter of the exercise of judicial power’.[172] Keane J stated that differentiation on racial grounds was ‘not a course that commends itself in terms of the exercise of judicial power given that justice is to be administered equally to all’.[173] Justice Gageler expressed that the reintroduction of a ‘race-based limitation’ on s 51(xix) would be equivalent to the words ‘other than ... the aboriginal race’ in any state in the race power, as deleted by the 1967 amendment.[174] The preferred view of the minority was that the aliens power related to the concept of belonging to a body politic or sovereign State,[175] and was therefore tied to statutory citizenship.[176]
The relevance of the ‘body politic’ is not self-evident. Its use as a frame of reference requires justification, in part because its significance relies on how the aliens power is characterised. Nor is it self-evident that citizenship is the criterion upon which the ‘body politic’ hinges, noting that the ‘body politic’ was invoked by Gaudron J in Nolan to suggest a more qualitative and autonomous understanding of the aliens power.[177] The reasoning of the minority therefore requires an explanation of the specific relevance of citizenship, mediated through a choice of characterisation. This explanation was most explicitly provided by Gageler J, who argued that the aliens power resembles powers to make laws with respect to ‘a legal status’,[178] like bankruptcy,[179] trade marks[180] and marriage.[181] Consequently, his Honour viewed the aliens power as a topic of ‘juristic classification’,[182] harbouring an ‘ineluctable fluidity in that the law on that topic was in a process of legislative development before and after 1900’.[183] It did not have an ‘established and immutable legal meaning’;[184] rather, it was ‘itself a source of legislative authority to modify or replace the pre-existing law’.[185] Consequently, legal status can be ascertained ‘only through the application of positive law, the enactment of which inheres in the legislative power itself’.[186] This judgment echoes Singh, in which Gleeson CJ stated that the aliens power is a concept that ‘can only be identified by reference
to legal usage and understanding’.[187] The centrality of legal status is therefore
the link that ties alienage to membership of the body politic, as mediated by
statutory citizenship.[188]
Justice Gageler’s approach is based on a framework of constitutional characterisation originally propounded in Attorney-General (NSW) ex rel
Tooth & Co Ltd v Brewery Employes Union of NSW (‘Union Label Case’).[189]
In that case, Higgins J — ‘[i]n an enduring and influential dissent’[190] — distinguished between constitutional powers over subjects ‘fixed by external nature’ and ‘artificial products of society’.[191] While the former cannot be extended by Parliament, the latter can be.[192] Justice Higgins consequently determined that ‘trade mark’ belonged to the latter category, and that Parliament was able to extend the concept of ‘trade mark’ to include the workers’ mark at issue in the decision.[193]
The approach of Higgins J in this dissent has been adopted in categorising powers over bankruptcy,[194] patents,[195] taxation[196] and marriage[197] as artificial subjects. In Attorney-General (Vic) v Commonwealth, Windeyer J described these imprecisely demarcated matters as ‘topic[s] of juristic classification’.[198] Another way of conceptualising this distinction is that physical subjects are ‘exogenous’ (in that they are defined outside of the legal system) and artificial subjects are ‘endogenous’ (in that they are largely defined by the law).[199] Notably, it has never been argued that the race power pertains to a topic of juristic classification. Rather, the race power in s 51(xxvi) of the Australian Constitution is seen as ‘exogenous’, because it is viewed as concerning ‘natural or physical’ subject matter, ascertainable outside of the legal system by features that cannot be extended by Parliament.[200]
The racialisation of constitutional alienage was not considered in detail by the minority in Love. Conversely, race was dismissed as ‘irrelevant’ to membership of the body politic,[201] as well as to the acquisition of statuses historically associated with non-alienage, such as British subjecthood.[202]
However, the ‘body politic’ or ‘British subjecthood’ only becomes a relevant frame of reference after the aliens power is characterised as an ‘endogenous’ subject largely defined by the law. If alienage transcends formalist ‘legal’ meaning, then discussion of race may be relevant to examining what kind of membership is required for non-alienage.[203] This divergence highlights the relevance of race as a justification or refutation of the choice of characterisation. Contrary to the reasoning of the minority in Love, race cannot be dismissed as irrelevant without examining the justifications for a particular approach to characterisation. The following Part examines each of these justifications, arguing that a racial lens reveals that juristic classification is an untenable characterisation of the aliens power.
Juristic classifications are built on binary categorisations (either something is a subject of juristic classification, or it is not) and binary consequences (either something is defined by Parliament, or it is not). There is a danger in creating ‘separate constitutional principles’ within s 51 of the Australian Constitution,[204] particularly where these distinctions result in a dichotomous approach to constitutional characterisation. All powers in s 51 derive their meaning from both exogenous and endogenous sources;[205] no power is purely one or the other. For instance, the aliens power sits ‘at the intersection of a “natural” subject (a person) and an “artificial” subject (a status)’.[206] Yet its characterisation as a topic of juristic classification makes alienage entirely contingent on statutory citizenship.
Consideration of the racial history of the aliens power challenges the binary established by juristic classification. Specifically, the racialisation of the meaning of the aliens power reveals that the boundaries between categories of constitutional characterisation are themselves unstable. Historically, the aliens power has transgressed the dichotomy between endogenous and exogenous classification. At Federation, this meaning was dualistic, comprising elements of subjecthood and race.[207] Over time, the High Court moved away from racial meaning, with the consequence that the meaning of ‘alien’ progressively lost an ‘exogenous’ attribute; ‘race’ has been defined as existing outside of the legal system in the context of the race power in s 51(xxvi) of the Australian Constitution.[208] Juristic classification fixes a power to the ‘endogenous’ category, permanently tying its meaning to parliamentary determination. This approach is static. It fails to recognise that categorisation is malleable, and that subjects can move along a spectrum of naturality and artificiality.
This binary is further destabilised by the lack of coherent and distinctive features uniting topics of juristic classification. The reasoning of the minority in Love contains a number of assumptions that do not themselves support a formalist conception of alienage, but rather proceed from a formalist basis
that is already presumed. Two examples are analysed below, drawing on comparisons to race.
One rationale for categorising powers as topics of juristic classification is their ‘ineluctable fluidity in that the law on that topic was in a process of legislative development before and after 1900’.[209] The phrase ‘ineluctable fluidity’ is a contingent attribute in this sentence. It does not refer to fluidity in general, but rather the fluidity of ‘the law on that topic’.[210] In the specific context of the aliens power, ‘the law on that topic’ refers to the law on naturalisation and allegiance, which was in a process of development before and after 1900.[211]
The fact that law on a topic exists and was in flux at the time of Federation does not affix its constitutional definition to that law.[212] The legal definition of race has also been continually reconstructed as a mechanism of colonisation and racialisation. McCorquodale identifies 67 legal definitions of Aboriginality among 700 separate pieces of legislation dealing with Aboriginal matters.[213] Australian states progressively introduced legislation using the assimilationist, derogatory designations of ‘half-castes’ between 1839 and 1912,[214] and
‘quarter-castes’ in 1936.[215] These definitions were often contradictory. For example, the Aboriginals Protection and Restriction of the Sale of Opium
Act 1897, 61 Vic ‘deemed’ Aboriginality for persons who were ‘the offspring of an aboriginal mother and other than an aboriginal father’,[216] and who ‘habitually live[d] or associate[d] with aboriginals’.[217] Later legislation contradicted this approach, changing this categorisation to ‘a person who has a preponderance of the blood of an Aborigine [sic]’[218] and subjecting ‘a part-Aborigine [sic]’ to the test of habitual association.[219] In Muramats v Commonwealth Electoral Officer (WA), Higgins J specifically conceptualised Aboriginality as constituted by law, stating that ‘the present Australian black people’ were Aboriginal ‘from the point of view of white settlers or of Australian laws’.[220] But that view did not make race ‘endogenous’, with some members of the High Court later adopting a non-technical approach embracing an understanding of race beyond statute when considering the race power in Commonwealth v Tasmania (‘Tasmanian Dam Case’).[221]
Several observations can be made here. First, fluidity — whether before, during or after Federation — is not the exclusive dominion of topics of juristic classification. Second, the existence of law purporting to provide a definition of a subject is not dispositive of the definition of that subject. Third, that same law is not dispositive of its constitutional characterisation. Race has remained ‘exogenous’, existing outside of the legal system.[222] The fact that the legal concept of race was in flux at and beyond Federation does not make the race power a topic of juristic classification, or vest control over its development to the legislature. As Gaudron J argued in Nolan, this is because constitutional meaning must be based on an ordinary understanding that cannot be displaced by statute.[223] The law can ‘deem’ a person a member of a race, but such a superficial attribution does not itself reconstitute the social facts critical to processes of racialisation.
This comparison reveals a circularity in the reasoning used to analyse alienage. Neither fluidity nor positive law distinguishes an ‘alien’ from exogenous subjects, as law can exist on the definition of a subject without displacing its constitutional meaning. The only way to conclude that the aliens power is a topic of juristic classification is to erroneously begin with the presumption that positive law is exhaustively determinative of alienage.
Another rationale is that alienage is a legal ‘status’.[224] Under this premise, a status in law exists when a person ‘belongs to a class of persons who, by reason only of their membership of that class, have rights or duties, capacities or incapacities, specified by law which do not exist in the case of persons not included in the class’.[225] The High Court has previously favoured this framing, stating that Parliament ‘may make laws which impose upon those having this status burdens, obligations and disqualifications which the Parliament could not impose upon other persons’.[226]
These qualities are not exclusive to topics of juristic classification. Race has also been treated as an ‘artificial legal status’.[227] A person who belongs to a racial class may also have rights or duties and capacities or incapacities which may not extend to other racial classes. Quick and Garran specifically described the purpose of the race power as enabling the Commonwealth to ‘localize’, ‘restrict’ and ‘confine’ people of ‘any alien race’.[228] In more recent history, Indigeneity has also formed the basis of a class entitled to native title,[229] otherwise described as rights in land that do not extend to other persons.
Even though the language of ‘status’ formalises alienage, its definition again fails to identify distinguishing features that justify a separate classification. Membership of a racial class also has legal consequences in exactly the way that ‘status’ aims to describe. This language therefore also proceeds from an assumption that the term ‘alien’ is formalist in nature.
Overall, these comparisons seek to illustrate the fragility of the binary established by juristic classification. Such a framework treats two historically complementary powers as separate constitutional species. This outcome is dangerous, as one power can be constrained by exogenous understandings while the other is left to continually expand in application based on a false premise of formalism. It also ignores the symmetric relationship between the legal system and ordinary understanding, and the ways in which codification can manufacture divisions that deepen racial difference.[230]
Separately, juristic classifications struggle to establish limitations to parliamentary power. Even though justices who use the language of juristic classification recognise that Parliament’s choice cannot be ‘unconstrained’,[231] no clear limitations have emerged. In the Union Label Case, Higgins J suggested that Parliament would not be able to enact ‘sham’ laws where the ‘substance of the Act’ reveals that Parliament did not genuinely apply itself to the exercise of power.[232] However, this approach has not been subsequently adopted.[233] In Love, Gageler J briefly listed possible limitations, but ultimately found that there was no need to explore them.[234]
The aliens power is an illustrative example of the difficulties of not anchoring a limitation to anything beyond a legislative conception of meaning. Although the Pochi limit has recognised that Parliament ‘cannot ... expand the power under s 51(xix) to include persons who could not possibly answer the description of “aliens” in the ordinary understanding of the word’,[235] the High Court has been unable to imbue the limit with positive, definitional content. It is generally recognised that the Pochi limit imposes some constraint on Parliament’s use of s 51(xix) of the Australian Constitution, but the content of this limitation is contested. The majority in Love viewed the Pochi limit as a reason why the class of ‘alien’ should be defined by positive content and anchored to a ‘central point within’ rather than a ‘boundary line without’.[236] In contrast, the minority in Love suggested that Pochi only imposed ‘outer limits’,[237] barring Parliament from expanding s 51(xix) of the Australian Constitution to include persons who ‘could not possibly answer the description of “aliens”’.[238] The minority’s approach has made consideration of limits to the aliens power an assertive affair, in which a set of facts is stated to not stretch ordinary understanding without any reference to the meaning of ‘alien’ or its ‘ordinary understanding’.
In Alexander, for example, Kiefel CJ, Keane and Gleeson JJ — without explicitly explaining the ordinary understanding of alien or its connection to enmity — asserted:
It does not stretch the ordinary understanding of the expression ‘alien’ to include within that category an individual who has engaged in conduct exhibiting such extreme enmity to Australia as to warrant being excluded from membership of the Australian community.[239]
If ‘the Australian community’ is interpreted as the ‘body politic’ defined by statutory citizenship,[240] then Alexander reveals that any ordinary understanding of ‘alien’ anchored only to statutory citizenship reduces the Pochi limit to a circularity: in other words, that citizenship-stripping legislation does not go beyond the ordinary understanding of ‘alien’ where extreme enmity warrants citizenship-stripping legislation. The only way to construe the Pochi limit coherently is by attaching enmity to a broader sense of community. Any other interpretation recites itself into its own justification, in precisely the way that Pochi does not allow.
A recurring objection in Love was the illegitimacy of importing a racial distinction into s 51(xix) of the Australian Constitution.[241] However, redressing the historic injustices of racial discrimination does not justify a language that masquerades as neutral but discriminates in its effect. As Gaudron J stated in Street v Queensland Bar Association (‘Street’), a ‘failure to accord different treatment appropriate to [a relevant] ... difference also constitutes discrimination’.[242] Any proper approach to characterisation should be capable of reckoning with the racial history of alienage. Recognition of racial distinctions is necessary to remediate the injustices that have historically prevented the equal administration of justice. This article does not attempt to unify the majority judgments in Love. Rather, it briefly identifies steps that a search for definitional content should follow, based on the judgment of Gaudron J in Nolan and grounded in racial history. This approach is twofold.
First, the concept of ‘alien’ should be defined expansively, based upon a sense of community or a body politic grounded in the ordinary understanding of alienage.[243] It should not be tied to statutory citizenship, as this approach would devolve into the circularity outlined in Part III(B) and would fail to substantiate the Pochi limit. This approach is consistent with the majority in Love, and reflects the understanding that non-constitutional concepts cannot determine the scope of a head of power.[244]
Second, admission to the community can depend on particular criteria.[245] These criteria should represent applications of the aliens power. An expansive understanding can subsume both race and subjecthood as two early applications — or criteria by which membership of the community was adjudged — while recognising that neither are dispositive of alienage. Final determination of these criteria is vested in the High Court. They will likely be chosen through an engagement with the history and continuing relevance of the norms of community membership ‘that are treated as providing the most fundamental connection with the body politic which comprises territory, government and people’.[246]
This approach allows for the criteria of alienage to change or be deemed irrelevant when they are no longer suitable for modern times, because they are not essential components of the power. The point at which a criterion becomes irrelevant should depend on social and political facts, rather than legislative facts. In Nolan, for example, Gaudron J argued that only a ‘change in the relationship between the individual and the community’ could effect a transformation from non-alien to alien.[247] Consequently, the criterion of British subjecthood could not be displaced by citizenship legislation alone. As Part IV argues, relevant relational changes have occurred to displace the criterion of race. These changes should precipitate an expansive understanding of non-alienage.
Juristic classification ties the definition of the aliens power to a legislative mechanism, eroding the High Court’s role in assessing its changing application. An approach grounded in ordinary understanding better enables the Australian Constitution to act as a ‘living force’.[248]
Simultaneously, alienage has most often been interpreted by reference to its history, as opposed to current values and attitudes.[249] Any recognition of race must therefore ensure that the colonial history of alienage does not preclude the capacity for constitutional renewal. This Part argues that reckoning with racial history can itself provide an avenue for incorporating self-identification and communal recognition into the meaning of alienage, drawing on a comparison to the legal definition of race throughout history.
Although the meaning of a constitutional power does not change, the application of meaning does change.[250] Further, the applications of some heads of power are more dynamic than others, particularly where they depend upon facts which are relevant to constitutional construction and validity (also known as constitutional facts).[251] For example, the validity of a law under the defence power will depend upon ‘the nature and dimensions of the conflict that calls it forth’, ‘the actual and apprehended dangers, exigencies and course of the war’.[252]
The aliens power is also grounded in constitutional fact. In Australian Communist Party v Commonwealth, Williams J explicitly stated that a person must be ‘in fact and law an alien’ to enliven the aliens power.[253] It has been recognised that the application of the aliens power may be affected by ‘changes in political and social facts and circumstances’.[254] For example, ‘changes in the national and international context in which s 51(xix) is to be applied may have an important bearing upon its practical operation’.[255] In Re Patterson,
McHugh J identified that the denotation of ‘alien’ can be affected by ‘the gradual development of the Australian sovereign state’.[256]
Other circumstances may include
a change in sovereign identity or territory; breach by a naturalised member of the political community of a reasonable condition upon membership; and express or implied renunciation of membership of that political community.[257]
These changes may attach to the community itself, or to the individual subject. If the conclusion of the majority in Love survives, there may be increasing recognition of these factors as the High Court departs from the ‘strict and complete legalism’ it has historically favoured.[258]
As Gaudron J stated in Nolan, the transformation from non-alien to alien ‘requires some relevant change in the relationship between the individual and the community’[259] — it is not open to Parliament to effect a transformation ‘by simply redefining the criterion for admission to membership of the community constituting the body politic of Australia’.[260] Consequently, the framework for ascertaining changes in the application of the aliens power relies on a broader conception of community than that prescribed by Parliament. An example of such a conception exists in the changing definitions of race.
The legal definition of race is a useful comparison to the aliens power for two reasons. First, the evolving application of race required a confrontation and revision of racial assumptions embedded in the law that the High Court has almost entirely evaded in the context of the aliens power. Its evolution in this regard may be instructive for the future direction of the aliens power. Particularly, the legal definition of race exhibits how an ‘exogenous’ dimension of meaning can be interpreted and applied differently over time. Second, the comparison has a substantive foundation in the similarities between the race power and the aliens power. Both powers can be characterised as powers to legislate with respect to a particular class of persons.[261] They do not canvass a function of government, an activity, or a relationship.[262] A power based on a particular class of persons is also ‘inherently less precise as to its permitted subject-matter’,[263] allowing Parliament significant leeway and ‘necessarily authori[sing] discriminatory treatment of members of that class’.[264] In addition, both the race power and the aliens power were included in the Australian Constitution to regulate race.[265]
Historically, biological descent was the central basis for legal definitions of race in Australia.[266] In Ofu-Koloi v The Queen, the High Court recognised ‘pigmentation’ as ‘a characteristic of race’ that ‘may be of cogent evidentiary significance’.[267] The Court also rejected mixedness: in their view, to be regarded as ‘European’ required that a person be ‘from European stocks without known admixture of Africa, Asian or other stocks’.[268] Further, these biological indicators were adjudicated by the judicial beholder. The race of a child was adjudged through ‘inspection’ by the judge.[269] Section 71A of the Evidence and Discovery Ordinance 1913–1952 (Papua New Guinea) also stated that in the absence of sufficient evidence of a person’s race, a judge ‘having seen the person’ could determine the question. Another definitional mechanism was the ‘blood quantum’ test, which was used to classify First Nations persons based on the fraction of their ‘blood’ that was considered attributable to their race.[270] Biological characterisation was pivotal in the extension of assimilationist policies, including the removal of First Nations children from their families.[271] Genealogy and biology continued to be the crux of racial definition in Australian law at least until the 1967 referendum.[272] Further, the perspective of the person was less important than the way in which they were perceived. The Pacific Island Labourers Act 1901 placed the onus of proof on individuals to refute the imposition of a racial identity, stating that ‘a person alleged to be a Pacific Island labourer shall be deemed to be a Pacific Island labourer until the contrary is shown’.[273] Such racial distinctions directly modified Australian citizenship. For example, Papuan Australians were denied entitlements under Australian citizenship on a racial basis:[274] by the independence of Papua New Guinea in 1975, Papuans who were Australian citizens could not exercise their right to live in Australia, while Chinese and mixed-race people who were Australian citizens could.[275] These historical distinctions were perpetuated in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Ame, which determined that the applicant (a Papuan Australian who held the legal status of citizen under the Australian Citizenship Act 1948) possessed a ‘largely nominal’ Australian citizenship that could be permissibly withdrawn.[276] The Full Federal Court took a different approach with regard to ethnically Chinese persons born in pre-independence Papua.[277]
Race has been described as a ‘false taxonomy of humanity’[278] with ‘a notoriously slippery meaning’.[279] Nowadays, it is well accepted that ‘race’ and ‘ethnicity’ are ‘social, cultural and political constructs, rather than matters of scientific “fact”’.[280] There is ‘no meaningful genetic or biological basis for the concept of “race”’.[281] Recognitions of these dimensions of race are contained in the Tasmanian Dam Case. In considering the race power, Brennan J stated that biology is non-exhaustive of race, and is supplemented by ‘a common history, a common religion or spiritual beliefs and a common culture’.[282] Nonetheless, Brennan J stated that ‘[t]here is, of course, a biological element in the concept’.[283] Justice Deane stated that the meaning of race is ‘wide and non-technical’,[284] and imports elements of ‘spirit, belief, knowledge, tradition and cultural and spiritual heritage’.[285] These judgments represented a marked movement away from historical understandings that foregrounded biology in racial determination. This emphasis of sociocultural, historical and spiritual attributes signalled the emergence of a more multidimensional conception
of race.
The relevance of biology does still subsist in recent judgments of the High Court,[286] but there is evidence to suggest that its influence may continue to diminish. Although the case was ultimately discontinued, the centrality of biology to race was challenged again in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Montgomery,[287] in which the respondent argued that Aboriginality could be established through cultural adoption even in the absence of strict biological descent.[288] This contention indicates that the concept of race may continue to evolve, possibly resulting in the further decentralisation of biology.[289]
The evolution of race in the law indicates how the High Court’s understanding of race has shifted from an identity that is unilaterally imposed upon a subject to an identity that is assumed by that subject and validated by the recognition by their constitutive community. It also evidences a shift in proof from external indicators mediated through the gaze of the judiciary — such as ‘pigmentation’[290] — to more metaphysical attributes mediated through the social formation of communities — such as cultural heritage. Although many aspects of institutional power surrounding race remain unchallenged, this history nonetheless supports a narrower conclusion of ‘judicial willingness to accept the popular meaning of an expression, other than one defined by statute’.[291] That same willingness has not extended to the aliens power, despite its racial foundations.
The characterisation of the aliens power converges with race at various points. The comparison is most direct if one criterion for non-alienage is membership of a racial class, which is one interpretation of Love.[292] Here, the operation
of the race power is a response to the concern that the majority in Love
would ‘concede capacity to decide who is and who is not an alien ... to a
non-constitutional non-representative non-legally-accountable sub-national group’.[293] In the context of the race power, the High Court has already recognised self-identification and communal recognition,[294] and has also established a means of ascertaining Aboriginality in the form of the tripartite test in Mabo v Queensland [No 2] (‘Mabo’).[295] This test provides that
[m]embership of the indigenous people depends on biological descent from the indigenous people and on mutual recognition of a particular person’s membership by that person and by the elders or other persons enjoying traditional authority among those people.[296]
The same test could be used to identify non-aliens under the aliens power. Its extension to the aliens power is nothing more than the application of the same test to regulate the boundaries of a racial class, without ceding the capacity for the High Court to decide whether that class satisfies an appropriate criterion for non-alienage.
However, this direct mode of comparison should not be the only lens through which First Nations peoples are conceptualised. A racial reading of Love characterises First Nations societies ‘as racial communities, rather than as political entities’.[297] Narrow legal definitions of race risk siloing the designation of First Nations identity into settler legal constructs of Aboriginality, without recognising the diversity of First Nations polities or their laws and customs.[298] Further, the application and interaction of the tests from the Tasmanian Dam Case and Mabo are contested. Members of the High Court in Love diverged in their approaches to the tests. Justice Nettle adopted a narrow view, holding that a plaintiff should be able to show that they belong to an Aboriginal community whose laws and customs ‘have relevantly maintained a continuous existence and vitality since the Crown’s acquisition of sovereignty’.[299] Conversely, Edelman J observed that the Mabo test may not necessarily be an exhaustive means of ascertaining Aboriginality, particularly as the Mabo test was created in the context of native title.[300] These conflicts pose problems for future applications of the test. If the narrower view prevails, First Nations non-citizens may be obliged to show ‘“native title equivalent” continuity’ to fall within the finding in Love.[301]
In this context, any lessons drawn from a comparison of alienage and race must extend beyond race. Existing debates suggest that future front lines of the aliens power may include questions of dual citizenship (whether dual citizens can be aliens)[302] or unconditional absorption (whether alienage can cease upon integration into the Australian community in the absence of naturalisation).[303] Recognising the role of race enables the extrapolation of an approach
that centres an expansive concept of community in each determination. Additionally, the extrapolation of the evolving legal definition of race to a broader understanding of community can provide an alternative lens which enables the recognition of First Nations societies as polities, rather than racial classes.
Historically, race was a unilateral imposition of identity upon a person. This was achieved through judicial assessment of appearances or statutory ‘deeming’ provisions which assigned racial categories based on ‘blood quantum’.[304] These lenses deprived people of interiority. Identity was ascribed, rather than assumed by its subject. Current understandings now recognise that race is ‘highly relative in time and place’ and contingent on understandings of group identity that are constantly fluctuating.[305]
These fluctuations ultimately precipitated two changes to race in the law. These changes did not arise because of upheaval in the boundaries between discrete races. One change is societal: a struggle toward equality caused greater recognition of the self-determinate capacities of historically marginalised groups. Previous racial categorisations were unmasked as legislative manifestations of a belief in racial superiority.[306] The tripartite test itself ‘was developed to mitigate against an overly rigid and unilateral logic of race’.[307] A second and consequential change was epistemic: a redistribution of discursive power has enabled knowledge of non-biological factors constituting the definition of race. Courts are now more willing to give credence to individuals and the communities to which they belong. That a group of people ‘regard themselves ... as having ... a long shared history and a culture distinctly of their own’ is now a significant factor in establishing a race.[308]
This trend is not exclusive to the concept of race. That fact has already been recognised by courts in foreign jurisdictions, which have applied it to the concept of nation. In King-Ansell v Police,[309] Richardson J of the High Court of New Zealand stated:
The real test is whether the individuals or the group regard themselves and are regarded by others in the community as having a particular historical identity in terms of their colour or their racial, national or ethnic origins.[310]
These factors were echoed again in the specific context of the concept of nation in Ealing London Borough Council v Race Relations Board, in which Lord Simon determined that ‘Scotsmen’ constituted ‘a nation by reason of those most powerful elements in the creation of national spirit — tradition, folk memory, a sentiment of community’.[311]
Like a race or a nation, non-alienage is also a sense of shared identity derived from self-identification and communal recognition. It was first unilaterally imposed: exclusionary laws were applied to people of particular races, without regard for British subjecthood or other forms of community belonging.[312] Such an approach established restrictive criteria of membership, analogous to the restrictive definitions of race in legal history. Simultaneously, if recognised in its ordinary understanding as belonging to a political community or body politic, non-alienage is also culturally and temporally contingent.
In the same way that a trend toward societal equality and a diversification of sources of knowledge recalibrated racial definition, a similar recalibration could also emerge in the context of the aliens power. Specifically, incorporating self-identification and communal recognition into non-alienage is a necessary consequence of analogous changes in social facts: a struggle toward equality and an epistemic change to understandings of community. Together, these changes constitute a ‘change in the relationship between the individual and the community’[313] capable of displacing the relevance of the historical racial criterion of alienage. This occurs on two levels: through reconfiguring the relationship between individuals and the Australian community, as well as redefining the Australian community itself. But this redefinition is neither static nor complete. While the work of repairing historic injustice is ongoing, recognition of self-identification and communal recognition produces an imperative to interpret non-alienage fluidly and expansively, rather than restricting its scope to statute. In this context, communal recognition should not be interpreted as recognition by a unitary and assimilatory Australian polity; rather, it should move toward recognition by the polity of its own pluralism, and recognition by discrete communities of their own members.
Emerging jurisprudence on s 51(xix) of the Australian Constitution also acknowledges the relevance of self-identification and communal recognition. In Alexander, Edelman J concluded that a person may become an alien through conduct incompatible with membership of the Australian political community.[314] The corollary of this conclusion is that community belonging can be voluntarily maintained in a self-identificatory sense, but also severed even in the absence of subjective intention where an action is communally recognised as inconsistent with continuing membership.[315] In Love, Nettle J suggested that the conclusion that a person was an alien if they were born abroad or were a foreign citizen was ‘at odds with the growing recognition of Aboriginal peoples as “the original inhabitants of Australia” and the ubiquity of Australian dual citizens’.[316] This statement highlights how legal orthodoxies surrounding alienage can be disrupted by the recognition by a community of its constituent members. The relevance of dual citizenship also demonstrates how the pluralisation of community constitution can render a narrower definition of community untenable. Here, communal recognition of the belonging of dual citizens encourages the expansion of the definition of non-alienage; conversely, an approach based solely on citizenship could exclude
dual citizens from non-alienage[317] and contradict the reality of their self-identification. Overall, these comments suggest that an imperative to account for self-identification and communal recognition inheres in the sociocultural character of the aliens power, as it does in the context of race.
In recognising these factors, the High Court should also be aware that it is often the majoritarian body politic that determines which parts of culture are recognised as constitutive of a race.[318] Analogously, majoritarian determination may also distort interpretation of the aliens power. As such, the imperative to account for self-identification and communal recognition in the context of the aliens power does not only demand that the High Court consider these factors cursorily, it also requires interrogation of their substantive content in the specific context of discrete communities. For example, the High Court’s understanding of community can turn away from ‘abstract and formalistic’ senses of membership and participation in society.[319] In Re Minister for Immigration and Multicultural Affairs; Ex parte Te, Kirby J focused on
formal rights (such as the right to vote or the right to participate in political affairs) as opposed to substantive participation in dismissing an argument on absorption — an arguably ‘sterile view of membership’.[320] Any approach that recognises these factors should do so substantively and not superficially.
Since Pochi, the aliens power has often been conceptualised as a contingency, defined only by reference to citizenship. As Love demonstrated, that definition is fundamentally unsustainable and is unable to accommodate realities of community membership that exist beyond the confines of statute.
A survey of the history of the Australian Constitution reveals that race was embedded into early conceptions of alienage. Contrary to the High Court’s dismissals of its relevance,[321] that fact underpinned understandings of alienage prior to Federation and subsisted throughout interpretations of alienage by courts and legislatures.[322] The subsequent entrenchment of an alienage defined by citizenship has perversely created discriminatory conditions in which preserving the formalism and neutrality of alienage has come at the expense of the necessary recognition of difference that Gaudron J called for in Street.[323]
Recognition of race evidences that the aliens power was never anchored to British subjecthood at Federation,[324] and continues to exist independently of formalist conceptions of political community. The coexistence of race and subjecthood in the history of the aliens power demands a higher and more transcendent understanding of constitutional alienage, capable of encompassing each of its institutionalised applications. That necessitates the understanding that both race and subjecthood were seen as subsidiary criteria to adjudge a broader sense of political community or membership of the body politic, in accordance with the framework propagated by Gaudron J in Nolan.[325] A comparison to legal definitions of race also shows how adopting this approach to characterising the aliens power enables a greater role for self-identification and communal recognition in the evolution of the power. As such, the racial history of the aliens power does not mean that the High Court is tied to racial meaning. But it does demand the Court grapple with that history to construct a meaning of alienage that is capable of enduring.
* BA, LLB (Hons) (Monash). I thank Associate Professor Yee-Fui Ng and the anonymous referees for their insightful comments.
[1] (2020) 270 CLR 152 (‘Love’).
[2] Australian Constitution s 51(xix).
[3] Love (n 1) 173 [14], 175 [19] (Kiefel CJ), 196–7 [91], 212–13 [141] (Gageler J), 217 [166]
(Keane J).
[4] Ibid 186–7 [61], 187 [64] (Bell J), 240 [245] (Nettle J), 262 [296] (Gordon J), 288 [394],
293 [404], 296 [410], 298–9 [415] (Edelman J).
[5] See Paul Karp, ‘Labor Drops Coalition Bid To Overturn High Court Ruling that Indigenous Australians Can’t Be Aliens’, The Guardian (online, 28 July 2022) <https://www.theguardian.com/australia-news/2022/jul/28/labor-drops-coalition-bid-to-overturn-high-court-ruling-that-indigenous-australians-cant-be-aliens>, archived at <https://perma.cc/B6R2-S5GQ>. See also, ‘Case S173/2021’, High Court of Australia (Web Page) <https://www.hcourt.gov.au/cases/case_s173-2021>, archived at <https://perma.cc/28YB-YKYA>.
[6] (2022) 276 CLR 336, 405 [183] (‘Alexander’).
[7] Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168, 209 (Stephen J) (‘Koowarta’). See also Asmi Wood, ‘Australia and Pandemics v BLM: No, Love Lost (at the High Court)’ (Pt I) (2021) 46(3) Alternative Law Journal 178, 179–80. Although Koowarta (n 7) concerned the ambit of the race power, the High Court has recognised the extension of this principle to the aliens power: see Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1, 55 (Gaudron J) (‘Chu Kheng Lim’). However, legislation enacted under the aliens power may be limited further by its connection to issues particular to the aliens power, such as entitlement to remain in Australia and the regulation of entry or facilitation of departure: see at 57.
[8] Polites v Commonwealth [1945] HCA 3; (1945) 70 CLR 60, 69 (Latham CJ), 80–1 (Williams J).
[9] Belinda Wells, ‘Aliens: The Outsiders in the Constitution’ [1996] UQLawJl 3; (1996) 19(1) University of Queensland Law Journal 45, 45.
[10] Ibid, citing Cunliffe v Commonwealth [1994] HCA 44; (1994) 182 CLR 272 (‘Cunliffe’).
[11] Wells (n 9) 45, citing Chu Kheng Lim (n 7).
[12] It has also supported migration legislation since 1984: Chetcuti v Commonwealth (2021) 272 CLR 609, 621 [11] (Kiefel CJ, Gageler, Keane and Gleeson JJ) (‘Chetcuti’); Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; (2006) 228 CLR 566, 574 [10], [13] (Gummow and Hayne JJ), 600 [101] (Heydon and Crennan JJ).
[13] Kim Rubenstein, Australian Citizenship Law (Thomson Reuters, 2nd ed, 2016) 93.
[14] Koroitamana v Commonwealth [2006] HCA 28; (2006) 227 CLR 31, 46 [48] (Gummow, Hayne and Crennan JJ) (‘Koroitamana’), citing Re Minister for Immigration and Multicultural Affairs; Ex parte Te (2002) 212 CLR 162, 173 [31] (Gleeson CJ), 180 [58] (Gaudron J), 188–9 [90], 192 [108]–[109] (Gummow J), 215–16 [193]–[194] (Kirby J), 219–20 [210]–[211] (Hayne J), 229 [229] (Callinan J) (‘Ex parte Te’).
[15] See, eg, Chu Kheng Lim (n 7) 25 (Brennan, Deane and Dawson JJ), 53 (Gaudron J);
Nolan v Minister for Immigration and Ethnic Affairs [1988] HCA 45; (1988) 165 CLR 178, 183–4 (Mason CJ, Wilson, Brennan, Deane, Dawson and Toohey JJ) (‘Nolan’); Cunliffe (n 10) 313 (Brennan J), 374–5 (Toohey J).
[16] See, eg, Nolan (n 15) 189 (Gaudron J). See also Singh v Commonwealth [2004] HCA 43; (2004) 222 CLR 322, 351 [59], 366 [100] (McHugh J) (‘Singh’).
[17] See, eg, Nolan (n 15) 183 (Mason CJ, Wilson, Brennan, Deane, Dawson, Toohey JJ), citing Milne v Huber, 17 Fed Cas 403, 406 (D Ohio Cir, 1843) (‘Milne’). See also Nolan (n 15) 189 (Gaudron J).
[18] Love (n 1) 312 [447] (Edelman J).
[19] This criticism extends to citizenship. If ‘alien’ means ‘non-citizen’ and ‘citizen’ means ‘non-alien’, citizenship will only have a statutory definition. It would not be a constitutional concept: Helen Irving, ‘Still Call Australia Home: The Constitution and the Citizen’s Right of Abode’ [2008] SydLawRw 8; (2008) 30(1) Sydney Law Review 131, 146 (‘Still Call Australia Home’); Michelle Foster, ‘Membership in the Australian Community: Singh v The Commonwealth and Its Consequences for Australian Citizenship Law’ [2006] FedLawRw 6; (2006) 34(1) Federal Law Review 161, 161–2 (‘Membership in the Australian Community’); Elisa Arcioni, ‘Chetcuti and Exclusion under the Australian Constitution: The Ongoing Story of Alien Status’ (2022) 33(1) Public Law Review 3, 5 (‘Chetcuti and Exclusion’); Elisa Arcioni and Rayner Thwaites, ‘Constitutional Law and Citizenship: Aboriginal Australians Not Vulnerable to Deportation’ [2020] (65) Law Society Journal 68, 68.
[20] Gerald L Neuman, ‘Aliens as Outlaws: Government Services, Proposition 187, and the Structure of Equal Protection Doctrine’ (1995) 42(6) UCLA Law Review 1425, 1428.
[21] Dominika Baran, Language in Immigrant America (Cambridge University Press, 2017) 49.
[22] Ibid.
[23] See, eg, Ruben J Garcia, ‘Critical Race Theory and Proposition 187: The Racial Politics of Immigration Law’ (1995) 17 (Fall) Chicano-Latino Law Review 118, 144–5.
[24] See, eg, Singh (n 16) 337 [21], 341–2 [31] (Gleeson CJ), 385 [159] (Gummow, Hayne and Heydon JJ); Kartinyeri v Commonwealth (1998) 195 CLR 337, 366 [40] (Gaudron J) (‘Kartinyeri’), cited in Love (n 1) 178 [31] (Kiefel CJ), 221 [177] (Keane J). But see extra-curially James Edelman, ‘Original Constitutional Lessons: Marriage, Defence, Juries, and Aliens’ [2021] MonashULawRw 1; (2021) 47(3) Monash University Law Review 1, 16 (citations omitted).
[25] See below Part II(A). As at 2012, s 51(xxvi) of the Australian Constitution has only supported Commonwealth legislation directed towards First Nations peoples and no other ‘racial’ groups: Lisa McAnearney, ‘Indigenous Recognition, Race and Section 51(xxvi): Constitutional Law Conundrums and Possibilities’ (2014–15) 18(2) Australian Indigenous Law Review 88, 90, citing Expert Panel on Constitutional Recognition of Indigenous Australians, Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution (Report, January 2012) 146.
[26] See below Part II(A).
[27] Part II of this article outlines several illustrative examples of the history of the aliens power. However, these are by no means exhaustive. For a detailed history of the racial application of the aliens power, see generally Peter Herman Prince, ‘Aliens in Their Own Land: “Alien” and the Rule of Law in Colonial and Post-Federation Australia’ (PhD Thesis, Australian National University, 2015) (‘Aliens in Their Own Land’). Parts III and IV of this article build on this history to propose a new lens through which to approach the interpretation of the aliens power.
[28] AV Dicey, A Digest of the Law of England with Reference to the Conflict of Laws, ed John Bassett Moore (Stevens and Sons, 1896) 174.
[29] Ibid 173 (citations omitted).
[30] John Quick and Robert Randolph Garran, The Annotated Constitution of the Australian Commonwealth (Angus & Robertson, 1901) 599.
[31] John W Salmond, ‘Citizenship and Allegiance: Nationality in English Law’ (Pt II) (1902) 18 (January) Law Quarterly Review 49, 58.
[32] Prince, ‘Aliens in Their Own Land’ (n 27) 24. For more context on the use of the term prior to Federation, see generally at chs 1–2.
[33] Ibid 154–5.
[34] Quick and Garran (n 30) 622, quoted in Prince, ‘Aliens in Their Own Land’ (n 27) 154.
[35] Geoffrey Sawer, ‘The Australian Constitution and the Australian Aborigine’ [1967] FedLawRw 2; (1966) 2(1) Federal Law Review 17, 19 (emphasis in original), cited in Prince, ‘Aliens in Their Own Land’ (n 27) 155.
[36] Quick and Garran (n 30) 603, cited in Prince, ‘Aliens in Their Own Land’ (n 27) 55.
[37] Prince, ‘Aliens in Their Own Land’ (n 27) 155–6.
[38] See Elisa Arcioni, ‘Tracing the Ethno-Cultural or Racial Identity of the Australian Constitutional People’ (2015) 15(2) Oxford University Commonwealth Law Journal 173, 177–9 (‘Tracing the Ethno-Cultural’).
[39] Official Record of the Debates of the Australasian Federal Convention, Melbourne, 28 January 1898, 245 (John Quick) (‘Convention Debates (28 January 1898)’). See also Prince, ‘Aliens in Their Own Land’ (n 27) 137.
[40] See, eg, Convention Debates (28 January 1898) (n 39) 251 (James Howe), 252 (John Cockburn). See also Quick and Garran (n 30) 622.
[41] Official Record of the Debates of the Australasian Federal Convention, Melbourne, 27 January 1898, 249 (Josiah Symon) (‘Convention Debates (27 January 1898)’). See also Prince, ‘Aliens in Their Own Land’ (n 27) 137.
[42] Convention Debates (28 January 1898) (n 39) 246 (Charles Kingston); Convention Debates
(27 January 1898) (n 41) 250 (Josiah Symon), 251 (James Howe).
[43] Convention Debates (27 January 1898) (n 41) 251 (James Howe).
[44] Convention Debates (28 January 1898) (n 39) 245 (John Quick).
[45] Love (n 1) 294 [406] (Edelman J).
[46] Convention Debates (27 January 1898) (n 41) 232 (Edmund Barton).
[47] Ibid. It is notable that substantive debate on the aliens power itself was minimal. Prince argues that it was ‘envisaged merely as a technical power about the process of naturalisation’: Prince, ‘Aliens in Their Own Land’ (n 27) 152. However, racial justifications were applied to the aliens power where it was referenced in debates on other powers. For example, Barton referred to the ‘preservation of the racial character of the white population’ in the context of legislative powers over ‘aliens and immigration’: ibid. Further, the racialised usage of ‘alien’ infected subsequent interpretations of the aliens power, as discussed below in Part II(A)(2).
[48] Graham Nicholson, ‘A Racist Constitution for a Nation: A Nation of Racists?’ [2000] AltLawJl 82; (2000) 25(5) Alternative Law Journal 211, 212–13.
[49] Love (n 1) 287 [392] (Edelman J).
[50] Convention Debates (27 January 1898) (n 41) 233 (Edward Braddon).
[51] Official Record of the Debates of the Australasian Federal Convention, Melbourne, 3 March 1898, 1791 (Edward Braddon). See also Prince, ‘Aliens in Their Own Land’ (n 27) 136.
[52] Charles A Price, The Great White Walls Are Built: Restrictive Immigration to North America and Australasia 1836–1888 (Australian National University Press, 1974) 271, quoted in Prince, ‘Aliens in Their Own Land’ (n 27) 33.
[53] Prince, ‘Aliens in Their Own Land’ (n 27) 141.
[54] See above n 47 and accompanying text.
[55] Prince, ‘Aliens in Their Own Land’ (n 27) 141.
[56] Ibid 152.
[57] Love (n 1) 294–5 [404] (Edelman J), citing Australasian Naturalisation Act 1897, 60 Vict, s 3.
[58] Love (n 1) 294 [405] (Edelman J), citing Australian Communist Party v Commonwealth
[1951] HCA 5; (1951) 83 CLR 1, 222 (Williams J) (‘Australian Communist Party’), Chu Kheng Lim (n 7) 64
(McHugh J), Western Australia v Commonwealth [1995] HCA 47; (1995) 183 CLR 373, 460 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ), Kartinyeri (n 24) 378 [81] (Gummow and Hayne JJ), and Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1; (2016) 257 CLR 42, 130 [259] (Keane J).
[59] Prince, ‘Aliens in Their Own Land’ (n 27) 141–5.
[60] Ibid 131.
[61] [1906] HCA 58; (1906) 4 CLR 395, 403–4 (Griffith CJ), 415–17 (Barton J), 420–1 (O’Connor J) (‘Robtelmes’), discussing Pacific Island Labourers Act 1901, 1 Edw 7, s 8.
[62] See generally Prince, ‘Aliens in Their Own Land’ (n 27) 199–208; Chetcuti (n 12) 640 [63] (Edelman J). See also John Gava, ‘Losing Our Birthright: Singh v Commonwealth’ [2016] AdelLawRw 15; (2016) 37(2) Adelaide Law Review 369, 377.
[64] Ibid 415.
[65] Ibid.
[66] Letter from Alfred Deakin to Lord Tennyson, 29 September 1902, [29] (reproduced in Commonwealth, Pacific Island Labourers Act: Correspondence Relating to (Tabled Paper Register No 15/F 5965, 1 July 1903) 10), quoted in Tracey Banivanua-Mar, Violence and Colonial Dialogue: The Australian-Pacific Indentured Labor Trade (University of Hawai‘i Press, 2007) 115, and Prince, ‘Aliens in Their Own Land’ (n 27) 29.
[67] See Raymond Evans, Kay Saunders and Kathryn Cronin, Race Relations in Colonial Queensland: A History of Exclusion, Exploitation, and Extermination (University of Queensland Press, 1993) 150; Peter Prince, ‘“Australia’s Most Inhumane Mass Deportation Abuse”: Robtelmes v Brenan and Expulsion of the “Alien” Islanders’ (2018) 5(1) Law and History 117, 133–4.
[68] Official Report of the National Australasian Convention Debates, Sydney, 8 April 1891, 702–3 (Samuel Griffiths), quoted in Brian Galligan and John Chesterman, ‘Aborigines, Citizenship and the Australian Constitution: Did the Constitution Exclude Aboriginal People from Citizenship?’ (1997) 8(1) Public Law Review 45, 51. See also Justin Malbon, ‘The Race Power under the Australian Constitution: Altered Meanings’ [1999] SydLawRw 3; (1999) 21(1) Sydney Law Review 80, 87.
[69] [1907] HCA 25; (1907) 4 CLR 1428.
[70] Ibid 1433, discussing Robtelmes (n 61).
[71] ‘Sugar Workers’ Conditions: Arbitration Court Sits at Cairns’, The Cairns Post (Cairns, 2 May 1919) 2, cited in Prince, ‘Aliens in Their Own Land’ (n 27) 27.
[73] [1923] QWN 38 (‘Brown’), cited in Prince, ‘Aliens in Their Own Land’ (n 27) 259.
[74] Brown (n 73) 87 (McCawley CJ for the Court); ‘Employment of Aliens Case’, The Townsville Daily Bulletin (Townsville, 27 December 1922) 5, cited in Prince, ‘Aliens in Their Own Land’ (n 27) 258.
[75] Gonzwa v Commonwealth [1944] HCA 12; (1944) 68 CLR 469, 476 (Latham CJ) (‘Gonzwa’). Legislation enacted in 1939 provided that whether an alien was an ‘enemy’ depended on whether the state of which the alien was a national fought with or against Britain in World War II: see Defence (National Security — Aliens Control) Regulations 1939 (Cth) reg 3(1) (definitions of ‘alien’ and ‘enemy alien’). The term ‘enemy alien’ was generally applied to persons born in the boundary of an enemy state: David Dutton, One of Us? A Century of Australian Citizenship (University of New South Wales Press, 2002) 92.
[76] Prince, ‘Aliens in Their Own Land’ (n 27) 40, citing Dutton (n 75) 92.
[77] Christine Piper, ‘Japanese Internment a Dark Chapter of Australian History’, The Sydney Morning Herald (online, 14 August 2014) <https://www.smh.com.au/opinion/japanese-internment-a-dark-chapter-of-australian-history-20140813-103ldy.html>, archived at <https://perma.cc/AB2H-3LNL>. See also Prince, ‘Aliens in Their Own Land’ (n 27) 40.
[78] [1949] HCA 65; (1949) 80 CLR 533 (‘Koon Wing Lau’).
[79] Ibid 549 (Latham CJ).
[80] Ibid.
[81] Ibid.
[82] Myra Willard, History of the White Australia Policy to 1920 (Frank Cass, 2nd ed, 1967) 70.
See also Prince, ‘Aliens in Their Own Land’ (n 27) 32.
[83] Willard (n 82) 190. See also Prince, ‘Aliens in Their Own Land’ (n 27) 31.
[84] Prince, ‘Aliens in Their Own Land’ (n 27) 32, citing Willard (n 81) 70.
[85] See Arcioni, ‘Tracing the Ethno-Cultural’ (n 38) 178–81.
[86] Willard (n 82) 119–22. See especially at 121, discussing Immigration Restriction Act 1901 (Cth) s 3(a) (‘Immigration Restriction Act 1901’).
[87] Letter from Alfred Deakin to The Morning Post, Sydney, 28 May 1906 (reproduced in Australian Parliamentary Library, From Our Special Correspondent: Alfred Deakin’s Letters to the London Morning Post (2021) vol 6, 128), as quoted in Marilyn Lake and Henry Reynolds, Drawing the Global Colour Line: White Men’s Countries and the International Challenge of Racial Equality (Cambridge University Press, 2012) 164. See also Prince, ‘Aliens in Their Own Land’ (n 27) 217.
[88] Prince, ‘Aliens in Their Own Land’ (n 27) 213–16.
[89] Ibid 214, citing Alexander T Yarwood, ‘The Dictation Test: Historical Survey’ (1958) 30(2) Australian Quarterly 19, 20.
[90] See, eg, Land Act 1910, 1 Geo 5, s 59(1); Leases to Aliens Restriction Act 1912, 2 Geo 5,
ss 3(1)–(2); Miners’ Homestead Leases Act 1913, 4 Geo 5, ss 3(i)(d) (definition of ‘qualified person’), 5; Queensland Government Savings Bank Act 1916, 7 Geo 5, s 25. For a detailed overview of these legislative materials and their use of the term ‘alien’, see Prince, ‘Aliens in Their Own Land’ (n 27) 218–23.
[91] KH Bailey, ‘The Legal Position of Foreigners in Australia’ in Norman MacKenzie (ed), The Legal Status of Aliens in Pacific Countries: An International Survey of Law and Practice concerning Immigration, Naturalization and Deportation of Aliens and Their Legal Rights and Disabilities (Oxford University Press, 1937) 32, 46, cited in Prince, ‘Aliens in Their Own Land’ (n 27) 222.
[92] Prince, ‘Aliens in Their Own Land’ (n 27) 211.
[94] Ibid 46.
[95] Immigration Restriction Act 1901 (n 86) s 3(a).
[97] Singh (n 16) 337 [21]. See also at 385 [159] (Gummow, Hayne and Heydon JJ).
[99] Cole v Whitfield [1988] HCA 18; (1988) 165 CLR 360, 385 (Mason CJ, Wilson, Brennan, Deane, Dawson, Toohey and Gaudron JJ) (‘Cole’). See also Pape v Federal Commissioner of Taxation [2009] HCA 23; (2009) 238 CLR 1, 148 [430] (Heydon J).
[100] Cole (n 99) 385 (Mason CJ, Wilson, Brennan, Deane, Dawson, Toohey and Gaudron JJ). See also Justice Michael Kirby, ‘Constitutional Interpretation and Original Intent: A Form of Ancestor Worship?’ [2000] MelbULawRw 1; (2000) 24(1) Melbourne University Law Review 1, 9–10. McCamish criticises this approach on the basis that there is no workable distinction between subjective intention and the permissible uses outlined in Cole (n 99): see generally Carl McCamish, ‘The Use of Historical Materials in Interpreting the Commonwealth Constitution’ (1996) 70(8) Australian Law Journal 638.
[101] Singh (n 16) 385 [159] (Gummow, Hayne and Heydon JJ). See also at 332 [12], 333 [14] (Gleeson CJ), 349–50 [54]–[56] (McHugh J), 413 [249] (Kirby J).
[102] Ibid 337 [21] (Gleeson CJ).
[103] For a discussion on the framework of legitimised racism, see Dwanna L McKay, ‘Masking Legitimized Racism: Indigeneity, Colorblindness, and the Sociology of Race’ in Kimberlé Williams Crenshaw et al (eds), Seeing Race Again: Countering Colorblindness across the Disciplines (University of California Press, 2019) 85, 88–90.
[104] See above Part II(A)(1).
[105] Convention Debates (27 January 1898) (n 41) 232 (Edmund Barton).
[106] Baxter v Commissioners of Taxation (NSW) [1907] HCA 76; (1907) 4 CLR 1087, 1105 (Griffith CJ, Barton and O’Connor JJ). See also Willard (n 82) 119.
[107] See, eg, Kartinyeri (n 24) 363 [33] (Gaudron J), 403 [135]–[136] (Kirby J).
[108] Ibid 363 [33] (Gaudron J), quoting Convention Debates (27 January 1898) (n 41) 240 (Sir John Forrest), and Convention Debates (28 January 1898) (n 39) 246 (John Quick), 248 (Charles Cameron Kingston).
[109] Ibid 363 [33] (Gaudron J), quoting Convention Debates (28 January 1898) (n 39) 250 (Josiah Symon), 250–2 (James Howe). See also Prince, ‘Aliens in Their Own Land’ (n 27) 138.
[110] Li v Minister for Immigration and Multicultural Affairs [2000] FCA 19; (2000) 96 FCR 125, 128 [11] (Drummond J) (citations omitted), quoted in Prince, ‘Aliens in Their Own Land’ (n 27) 209. See also Ruddock v Vadarlis [2001] FCA 1329; (2001) 110 FCR 491, 495 [6] (Black CJ, Beaumont J agreeing at 514 [95]), 543 [194] (French J).
[111] Prince, ‘Aliens in Their Own Land’ (n 27) 26. See also at 216–18.
[112] Ibid 218.
[113] See Jeffrey Goldsworthy, ‘Originalism in Constitutional Interpretation’ [1997] FedLawRw 1; (1997) 25(1) Federal Law Review 1, 9; McGinty v Western Australia [1996] HCA 48; (1996) 186 CLR 140, 230–1 (McHugh J).
[114] United Kingdom, Imperial Conference, 1926: Summary of Proceedings (Cmd 2768, 1926) 14, discussed in Shaw v Minister for Immigration and Multicultural Affairs [2003] HCA 72; (2003) 218 CLR 28,
41 [24] (Gleeson CJ, Gummow and Hayne JJ) (‘Shaw’).
[115] See Shaw (n 114) 37 [12] (Gleeson CJ, Gummow and Hayne JJ) (citations omitted);
Kirmani v Captain Cook Cruises Pty Ltd [No 1] (1985) 159 CLR 351, 363 (Gibbs CJ).
[116] See generally Helen Irving, ‘Citizenship before 1949’ in Kim Rubenstein (ed), Individual Community Nation: Fifty Years of Australian Citizenship (Australian Scholarly Publishing, 2000) 9; British Nationality Act 1948, 11 & 12 Geo 6, c 56 (‘British Nationality Act 1948’); Nationality and Citizenship Act 1948 (Cth) (‘Australian Citizenship Act 1948’).
[117] [1982] HCA 60; (1982) 151 CLR 101 (‘Pochi’).
[118] Ibid 109 (Mason J agreeing at 112, Wilson J agreeing at 116), discussing British Nationality Act 1948 (n 116), and British Nationality Act 1981 (UK).
[119] Pochi (n 117) 109–10 (Mason J agreeing at 112, Wilson J agreeing at 116).
[120] Ibid.
[121] Ibid 112.
[122] Ibid 111 (Gibbs CJ, Mason J agreeing at 112, Wilson J agreeing at 116).
[123] Ibid.
[124] Ibid, discussed in Michelle Foster, ‘“An ‘Alien’ by the Barest of Threads”: The Legality of the Deportation of Long-Term Residents from Australia’ [2009] MelbULawRw 18; (2009) 33(2) Melbourne University Law Review 483, 493 (‘An “Alien” by the Barest of Threads’).
[125] Pochi (n 117) 109 (Gibbs CJ, Mason J agreeing at 112, Wilson J agreeing at 116).
[126] Nolan (n 15) 184 (Mason CJ, Wilson, Brennan, Deane, Dawson and Toohey JJ).
[127] Ibid 183.
[128] Ibid 189 (Gaudron J).
[129] Ibid 183–4 (Mason CJ, Wilson, Brennan, Deane, Dawson and Toohey JJ), quoting Milne
(n 17) 406.
[130] Nolan (n 15) 186 (Mason CJ, Wilson, Brennan, Deane, Dawson and Toohey JJ).
[131] Ibid 183.
[132] Ibid 184.
[133] Ibid 189.
[134] Ibid.
[135] Ibid 192.
[136] Ibid 191.
[137] Ibid 193.
[138] Ibid.
[139] Foster, ‘An “Alien” by the Barest of Threads’ (n 124) 494, discussing ibid 189.
[140] (2001) 207 CLR 391 (‘Re Patterson’).
[141] Nolan (n 15), discussed in ibid 409 [39]–[40], 410–12 [45]–[51] (Gaudron J), 421 [90]–[91] (McHugh J), 491 [300]–[302] (Kirby J), 518 [376] (Callinan J). An alternative framing of the decision is that it was not effective in overruling Nolan (n 15): see Shaw (n 114) 44–5
[36]–[37] (Gleeson CJ, Gummow and Hayne JJ). Nonetheless, three Justices of the majority in Re Patterson (n 140) did explicitly express their intent to overrule Nolan (n 15): ibid 421
[90]–[91] (McHugh J), 491 [300]–[302], 493–4 [308] (Kirby J), 518 [376] (Callinan J).
See also at 400–1 [7], 409 [39]–[40] (Gaudron J).
[142] Re Patterson (n 140) 412 [51].
[143] Ibid 421 [91]. See also Ex parte Te (n 14) 187 [86] (McHugh J), discussing Re Patterson
(n 140).
[144] Shaw (n 114) 54 [73] (Kirby J).
[145] Ibid 44–5 [36]–[37], 45 [39] (Gleeson CJ, Gummow and Hayne JJ, Heydon J agreeing
at 87 [190]).
[146] Ibid 42–3 [27]–[31] (Gleeson CJ, Gummow and Hayne JJ, Heydon J agreeing at 87 [190]).
[148] Clive Parry, Nationality and Citizenship Laws of the Commonwealth and of the Republic of Ireland (Stevens & Sons, 1957) 92, quoted in Chetcuti (n 12) 626 [21] (Kiefel CJ, Gageler, Keane and Gleeson JJ). See also Pochi (n 117) 108 (Gibbs CJ).
[149] Chetcuti (n 12) 633–4 [47]–[48] (Gordon J), 640–1 [64]–[65] (Edelman J).
[150] Singh (n 16) 384 [157], 395 [190] (Gummow, Hayne and Heydon JJ), 418 [266] (Kirby J); Love (n 1) 188 [69] (Bell J), 263 [301] (Gordon J).
[151] Shaw (n 114) 42 [28] (Gleeson CJ, Gummow and Hayne JJ).
[152] United Kingdom, Report of the Royal Commissioners for Inquiring into the Laws of Naturalization and Allegiance (No 4109, 1869) (‘UK Royal Commission on Naturalization and Allegiance Laws’), cited in Chetcuti (n 12) 639 [61] (Edelman J).
[153] See also Chetcuti (n 12) 640–1 [63]–[64] (Edelman J).
[154] See above Part II.
[156] See, eg, Shaw (n 114) 61 [94] (Kirby J); Singh (n 16) 398 [200] (Gummow, Hayne and Heydon JJ).
[157] Love (n 1) 169–70 [2]–[3] (Kiefel CJ).
[158] Ibid 170 [3].
[159] Ibid.
[160] Love (n 1) 192 [81] (Bell J), 259–60 [284]–[285] (Nettle J), 286 [389]–[390] (Gordon J),
320–1 [466]–[468] (Edelman J).
[161] Ibid 262 [296].
[162] Ibid 288 [394]. See also at 293 [404], 296 [410], 298 [415]; Chetcuti (n 12) 635–6 [53]
(Edelman J). This formulation is less deferential to Parliament, but the criteria for membership of this community are yet to be clarified: Arcioni, ‘Chetcuti and Exclusion’ (n 19) 6–7.
[163] Love (n 1) 240 [245], quoting Singh (n 16) 398 [200] (Gummow, Hayne and Heydon JJ).
[164] Love (n 1) 187 [61], quoting Nolan (n 15) 183 (Mason CJ, Wilson, Brennan, Deane, Dawson and Toohey JJ).
[165] Nolan (n 15) 183 (Mason CJ, Wilson, Brennan, Deane, Dawson and Toohey JJ), 189
(Gaudron J). See also Singh (n 16) 351 [58] (Gleeson CJ).
[166] See Love (n 1) 185 [59], 188–9 [66]–[69] (Bell J), 244–5 [251]–[253] (Nettle J), 264–9
[304]–[322] (Gordon J), 288 [394], 306 [433] (Edelman J).
[167] Ibid 190 [73] (Bell J). See also at 256–7 [276]–[277] (Nettle J), 262 [296]–[297] (Gordon J), 287 [392], 289 [396] (Edelman J).
[168] Ibid 253 [272] (Nettle J), 262 [298], 273 [337]–[339] (Gordon J), 313–14 [450]–[451]
(Edelman J).
[169] Ibid 293–6 [404]–[409].
[170] Ibid 175 [19], 182 [47] (Kiefel CJ), 213 [141] (Gageler J), 213 [147] (Keane J).
[171] Ibid 181 [44] (Kiefel CJ). See also at 200 [101] (Gageler J), 222 [181] (Keane J).
[172] Ibid 229 [210] (Keane J). See also at 208 [126] (Gageler J).
[173] Ibid 222 [181], citing Tuckiar v The King [1934] HCA 49; (1934) 52 CLR 335.
[174] Love (n 1) 208 [126]. See also Constitution Alteration (Aboriginals) Act 1967 (Cth) s 2. Separately, Bell J observed that this concern was ‘overstated’: Love (n 1) 190 [73]. Many commentators have also characterised the central reason for the decision in Love (n 1) as Indigeneity as opposed to race, which provides a separate rebuttal of the minority’s reasoning: see, eg, Peter Gerangelos, ‘Reflections upon Constitutional Interpretation and the “Aliens Power”: Love v Commonwealth’ (2021) 95(2) Australian Law Journal 109, 113, 117. On the difficulties of defending rights to self-governance from the perspective of racial discrimination, see generally Kirsty Gover, ‘Indigenous-State Relationships and the Paradoxical Effects of Antidiscrimination Law: Lessons from the Australian High Court in Maloney v The Queen’ in Jennifer Hendry et al (eds), Indigenous Justice: New Tools, Approaches, and Spaces (Palgrave Macmillan, 2018) 27. See also below nn 291–5 and accompanying text.
[175] Love (n 1) 178–9 [32]–[33] (Kiefel CJ), 196–8 [91]–[94] (Gageler J), 225 [193]–[195] (Keane J).
[176] Ibid 173 [14], 175 [19] (Kiefel CJ), 196–7 [91], 212–13 [141] (Gageler J), 217 [166] (Keane J).
[177] See Foster, ‘An “Alien” by the Barest of Threads’ (n 124) 494, discussing Nolan (n 15) 189.
[178] Love (n 1) 193–4 [86]. This is similar to Prince’s argument that the aliens power was viewed by some delegates of the Convention Debates as a largely technical provision concerned with the naturalisation of aliens: Prince, ‘Aliens in Their Own Land’ (n 27) 141–2.
[179] Love (n 1) 194 [86], citing Australian Constitution s 51(xvii).
[180] Love (n 1) 194 [86], citing Australian Constitution s 51(xviii).
[181] Love (n 1) 194 [86], citing Australian Constitution s 51(xxi).
[182] Love (n 1) 194 [86], quoting A-G (Vic) v Commonwealth [1962] HCA 37; (1962) 107 CLR 529, 578 (Windeyer J) (‘Marriage Act Case’), and Commonwealth v Australian Capital Territory [2013] HCA 55; (2013) 250 CLR 441, 445 [14] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) (‘Marriage Equality Act Case’).
[184] Ibid, quoting Koroitamana (n 14) 37 [9] (Gleeson CJ and Heydon J).
[185] Love (n 1) 194 [86] (Gageler J), citing Grain Pool (WA) v Commonwealth (2000) 202 CLR 479, 500–1 [40]–[41] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ) (‘Grain Pool’), and Marriage Equality Act Case (n 182) 458–9 [21] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).
[186] Love (n 1) 195 [88] (Gageler J).
[187] Singh (n 16) 331 [10] (Gleeson CJ). See also Foster, ‘Membership in the Australian Community’ (n 19) 166.
[188] Chief Justice Kiefel and Keane J were less explicit about the essential character of the aliens power in their Honours’ approaches to its characterisation in Love (n 1): see James Stellios, ‘Constitutional Characterisation: Embedding Value Judgements about the Relationship between the Legislature and the Judiciary’ [2021] MelbULawRw 15; (2021) 45(1) Melbourne University Law Review 277, 313–15. However, their Honours’ respective decisions to characterise the aliens power in a formalist manner demonstrates their Honours share the view that alienage is a legal status contingent on positive law. Consequently, analysis of Gageler J’s approach extends to the reasoning of other members of the minority insofar as they rely on the centrality of legal status: at 317. Part IV of this article provides additional reasoning for why any approach that centralises definitional power in the legislature does not accord with the changing application of the aliens power.
[189] [1908] HCA 94; (1908) 6 CLR 469 (‘Union Label Case’).
[191] Union Label Case (n 189) 611.
[192] Ibid.
[193] Ibid 610–11.
[194] See Storey v Lane [1981] HCA 47; (1981) 147 CLR 549, 557–8 (Gibbs CJ, Mason J agreeing at 558, Wilson J agreeing at 564, Brennan J agreeing at 564).
[195] See, eg, Grain Pool (n 185) 492 [16], 493–5 [19]–[20] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ) (citations omitted).
[196] See Stenhouse v Coleman [1944] HCA 36; (1944) 69 CLR 457, 471 (Dixon J).
[197] See, eg, Marriage Equality Act Case (n 182) 456 [15], 458–9 [20]–[22] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ); Marriage Act Case (n 182) 577–8 (Windeyer J).
[198] Marriage Act Case (n 182) 578. Despite its subsequent application to the aliens power, the concept of ‘juristic classification’ was unfamiliar to Australian constitutional law at the time of the Marriage Act Case (n 182): Anne Twomey, ‘Same-Sex Marriage and Constitutional Interpretation’ (2014) 88(9) Australian Law Journal 613, 615.
[200] Ibid 282 (emphasis omitted), citing Koowarta (n 7) 209 (Stephen J).
[201] Love (n 1) 178 [31] (Kiefel CJ), 221 [177] (Keane J).
[202] Ibid 201–2 [104]–[105] (Gageler J).
[203] See, eg, ibid 293–6 [404]–[409] (Edelman J).
[204] Alexander (n 6) 407 [187] (Edelman J).
[205] See ibid 407 [188].
[207] See above Part II(A).
[208] See Stellios (n 188) 282, citing Koowarta (n 7) 209 (Stephen J).
[209] Love (n 1) 194 [86] (Gageler J).
[210] Ibid.
[211] See, eg, UK Royal Commission on Naturalization and Allegiance Laws (n 152); British Nationality Act 1948 (n 116); Australian Citizenship Act 1948 (n 116).
[212] For a detailed history of the legal classification of race from the time of European settlement to 1986, see generally John McCorquodale, ‘The Legal Classification of Race in Australia’ (1986) 10(1) Aboriginal History 7.
[213] Ibid 9.
[214] Legislation incorporating the term ‘half-caste’ was introduced in New South Wales in 1839, South Australia in 1844, Victoria in 1864, Queensland in 1865, Western Australia in 1874 and Tasmania in 1912: ibid 11; Aboriginals Competent Witnesses Act 1839, 2 Vic; Aborigines’ Evidence Act 1844, 7 Vic, s 1; Statute of Evidence 1864, 27 Vic No, s 42; Industrial and Reformatory Schools Act 1865, 29 Vic, s 6(7); Aboriginal Native Offenders Amendment 1874, 38 Vic, s 2; Cape Barren Island Reserve Act 1912, 3 Geo 5, s 28(1).
[215] McCorquodale (n 212) 15, citing Native Welfare Act 1963 (WA) s 4(a) (definition of ‘native’), and Aborigines’ and Torres Strait Islanders’ Affairs Act 1965 (Qld) s 6(2)(d) (‘Aborigines’ and Torres Strait Islanders’ Affairs Act 1965 (Qld)’).
[216] Aboriginals Protection and Restriction of the Sale of Opium Act 1897, 61 Vic, s 3 (definition of ‘Half-caste’) (‘Aboriginal Protection Act 1897’).
[217] Ibid s 4(c).
[218] Aborigines’ and Torres Strait Islanders’ Affairs Act 1965 (Qld) (n 215) s 6(1)(b).
[219] Ibid s 6(2).
[220] [1923] HCA 41; (1923) 32 CLR 500, 507.
[221] [1983] HCA 21; (1983) 158 CLR 1, 273–4 (Deane J) (‘Tasmanian Dam Case’), citing King-Ansell v Police [1979] 2 NZLR 531 (‘King-Ansell’), and Mandla v Lee [1983] 1 QB 1 (‘Mandla’). See also Tasmanian Dam Case (n 221) 243–4 (Brennan J).
[222] See Stellios (n 188) 282, citing Koowarta (n 7) 209 (Stephen J).
[224] Cunliffe (n 10) 334 (Deane J), 374–5 (Toohey J); Shaw (n 114) 35 [2] (Gleeson CJ, Gummow and Hayne JJ, Heydon J agreeing at 87 [190]).
[225] Ford v Ford [1947] HCA 7; (1947) 73 CLR 524, 529 (Latham CJ) (‘Ford’), quoted in Love (n 1) 193 [85] (Gageler J). See also Ford (n 225) 531 (Starke J).
[226] Shaw (n 114) 35 [2] (Gleeson CJ, Gummow and Hayne JJ, Heydon J agreeing at 87 [190]).
[227] McCorquodale (n 212) 15.
[228] Quick and Garran (n 30) 622.
[229] See generally Mabo v Queensland [No 2] [1992] HCA 23; (1992) 175 CLR 1, 42–3, 60–2, 76 (Brennan J,
Mason CJ and McHugh J agreeing at 15), 119 (Deane and Gaudron JJ), 216 (Toohey J) (‘Mabo’).
[230] See, eg, Laura Tabili, ‘The Construction of Racial Difference in Twentieth-Century Britain: The Special Restriction (Coloured Alien Seamen) Order, 1925’ (1994) 33(1) Journal of British Studies 54, 86–7.
[231] Love (n 1) 200 [101] (Gageler J). See also Marriage Act Case (n 182) 578 (Windeyer J).
[232] Union Label Case (n 189) 614–15.
[233] Stellios (n 188) 292, discussing ibid 615.
[234] This includes, for example, a requirement that exclusion from citizenship by reference to criteria of general application would need to be supported by ‘substantial reasons’: Love (n 1) 200 [101] (Gageler J). Justice Keane also recognised the existence of limits without specifying their content: at 218 [168].
[235] Pochi (n 117) 109 (Gibbs CJ, Mason J agreeing at 112, Wilson J agreeing at 116), discussing Australian Constitution s 51(xix).
[236] Love (n 1) 306 [433] (Edelman J), quoting Union Label Case (n 189) 611 (Higgins J). See also Love (n 1) 183 [50]–[51] (Bell J), 237 [236] (Nettle J), 266 [310]–[311], 282 [368] (Gordon J).
[237] Love (n 1) 218 [168] (Keane J), citing Pochi (n 117) 109 (Gibbs CJ, Mason J agreeing at 112, Wilson J agreeing at 116).
[238] Pochi (n 117) 109 (Gibbs CJ, Mason J agreeing at 112, Wilson J agreeing at 116). See also Love (n 1) 171 [7] (Kiefel CJ), 194–5 [87] (Gageler J).
[239] Alexander (n 6) 357–8 [35] (Gageler J agreeing at 377 [98]).
[240] The minority in Love (n 1) has maintained that ‘a member of the community’ has a technical meaning denoting belonging by legislative definition: at 178–9 [32]–[33] (Kiefel CJ),
196–8 [91]–[94] (Gageler J), 225 [193]–[195] (Keane J). This position is upheld by the majority in Chetcuti (n 12): at 376 [19] (Kiefel CJ, Gageler, Keane and Gleeson JJ).
[241] See above nn 158–61 and accompanying text.
[242] [1989] HCA 53; (1989) 168 CLR 461, 571 (‘Street’), cited in Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436, 478 (Gaudron and McHugh JJ) (‘Castlemaine’).
[243] Nolan (n 15) 189 (Gaudron J).
[244] Love (n 1) 264–9 [304]–[322] (Gordon J), 185 [59], 188–9 [66]–[69] (Bell J), 244–5
[251]–[253] (Nettle J), 288 [394], 306 [433] (Edelman J). For a recent affirmation of this point, see Alexander (n 6) 387 [134] (Gordon J).
[245] Nolan (n 15) 189 (Gaudron J).
[247] Nolan (n 15) 193. This formulation was implicitly refuted in Singh (n 16) 340–2 [30]–[31] (Gleeson CJ), 398 [198] (Gummow, Hayne and Heydon JJ). See also Foster, ‘Membership in the Australian Community’ (n 19) 181.
[248] A Inglis Clark, Studies in Australian Constitutional Law (Legal Books, 1997) 21.
[249] See, eg, Chu Kheng Lim (n 7) 25–6 (Brennan, Deane and Dawson JJ), quoting Nolan (n 15) 183–4 (Mason CJ, Wilson, Brennan, Deane, Dawson and Toohey JJ). See also Wells (n 9) 73.
[250] Andrews v Howell [1941] HCA 20; (1941) 65 CLR 255, 278 (Dixon J) (‘Andrews’).
[251] Ibid. For a detailed discussion on ‘constitutional facts’, see generally Justice JD Heydon, ‘Constitutional Facts’ (2011) 23 Upholding the Australian Constitution: Proceedings of the Samuel Griffith Society 85.
[252] Andrews (n 250) 278 (Dixon J).
[253] Australian Communist Party Case (n 58) 222.
[254] See, eg, Chetcuti (n 12) 635 [53], 651 [90]–[91] (Edelman J); Shaw (n 114) 42 [27] (Gleeson CJ, Gummow and Hayne JJ).
[255] Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Ame [2005] HCA 36; (2005) 222 CLR 439 458–9 [35] (Gleeson CJ, McHugh, Gummow, Hayne, Callinan and Heydon JJ)
(‘Ex parte Ame’).
[256] Re Patterson (n 140) 428 [111], citing Nolan (n 15) 184 (Mason CJ, Wilson, Brennan, Deane, Dawson and Toohey JJ).
[257] Alexander (n 6) 421 [229] (Edelman J).
[258] Sir Owen Dixon, ‘Address upon Taking the Oath of Office in Sydney as Chief Justice of the High Court of Australia on 21 April, 1952’ in Judge Woinarski (ed), Jesting Pilate: And Other Papers and Addresses (Law Book, 1965) 245, 247. See also Wood (n 7) 182–3.
[260] Ibid.
[261] Chu Kheng Lim (n 7) 55 (Gaudron J). The corporations power in s 51(xx) of the Australian Constitution can also be characterised as a power over ‘persons’: Actors and Announcers Equity Association of Australia v Fontana Film Pty Ltd (1982) 150 CLR 169, 181 (Gibbs CJ, Wilson J agreeing at 215); Stellios (n 188) 312. However, this article is concerned only with powers over ‘natural’ persons. As Gaudron J has recognised, ‘the analogy between people and corporations is less than perfect, particularly when it comes to laws authorizing executive interference with the liberty of the individual’: Chu Kheng Lim (n 7) 55–6.
[262] See Cunliffe (n 10) 315 (Brennan J); Koowarta (n 7) 209 (Stephen J).
[263] Koowarta (n 7) 209 (Stephen J).
[264] Leeth v Commonwealth (1992) 174 CLR 455, 489 (Deane and Toohey JJ). In 1901, Quick and Garran specifically distinguished the United States Constitution from the Australian Constitution. While racially discriminatory laws in the United States are unconstitutional under the equal protection clause, the absence of a corresponding provision in Australia empowers ‘special and discriminating laws’: Quick and Garran (n 30) 622–3, discussing United States Constitution amend XIV § 1, and Wo v Hopkins, 118 US 356 (1886).
[265] The difference was that the aliens power related to ‘the introduction of foreign coloured races’ while the race power related to ‘people of certain races when they [were] within the jurisdiction of the Commonwealth’: Convention Debates (28 January 1898) (n 39) 245 (John Quick). See also Joe McIntyre and Sue Milne, ‘The Alien and the Constitution: The Legal History of the “Alien” Power of the Commonwealth’ (Working Paper, 29 July 2020) <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3663533>, archived at <https://perma.cc/CF4Q-HZYH>.
[266] These factors were sometimes coupled with ‘habitual association’: see, eg, Aboriginal Protection Act 1897 (n 216) ss 3 (definition of ‘Half-caste’), 4(c); Torres Strait Islander Act 1939, 3 Geo 6, ss 3(b)–(c) (definition of ‘Islander’).
[267] [1956] HCA 64; (1956) 96 CLR 172, 176 (Dixon CJ, Fullagar and Taylor JJ) (‘Ofu-Koloi’).
[268] Ibid 175.
[269] Ibid 174.
[270] McCorquodale (n 212) 10–16; John Gardiner-Garden, ‘The 1967 Referendum: History and Myths’ (Research Brief No 11, Parliamentary Library, Parliament of Australia, 2 May 2007) 4.
[271] See, eg, Aborigines Protection Act 1909 (NSW) s 3 (definition of ‘Aborigine’); Aborigines Protection Amending Act 1915, 5 Geo 5, s 13A. See also Eatock v Bolt [2011] FCA 1103; (2011) 197 FCR 261,
300–1 [170]–[171] (Bromberg J) (‘Eatock’), discussing John Gardiner-Garden, ‘The Definition of Aboriginality’ (Research Note No 18, Parliamentary Library, Parliament of Australia,
5 December 2000) 3.
[272] Peter Hanks, ‘Aborigines and Government: The Developing Framework’ in Peter Hanks and Bryan Keon-Cohen (eds), Aborigines and the Law: Essays in Memory of Elizabeth Eggleston (George Allen & Unwin, 1984) 19, 30. Blood quantum tests were still being legislated in
1965: Aborigines’ and Torres Strait Islanders’ Affairs Act 1965 (Qld) (n 215) ss 6(1)(a)–(b),
(2)(a)–(b).
[273] Pacific Island Labourers Act 1901 (n 61) s 10.
[274] Kim Rubenstein and Jacqueline Field, ‘What is a “Real” Australian Citizen? Insights from Papua New Guinea and Mr Amos Ame’ in Benjamin N Lawrance and Jacqueline Stevens (eds), Citizenship in Question: Evidentiary Birthright and Statelessness (Duke University Press, 2017) 100, 101.
[275] Edward P Wolfers, Race Relations and Colonial Rule in Papua New Guinea (Australia and New Zealand Book, 1975) 134, quoted in ibid 104–5.
[276] Ex parte Ame (n 255) 470 [75] (Kirby J). See also at 459 [37]–[39] (Gleeson CJ, McHugh, Gummow, Hayne, Callinan and Heydon JJ), 487 [130] (Kirby J).
[277] See Minister for Home Affairs v Lee [2021] FCAFC 89, [104]–[107] (Logan, Kerr and
Banks-Smith JJ).
[278] Robert French, ‘The Race Power: A Constitutional Chimera’ in HP Lee and George Winterton (eds), Australian Constitutional Landmarks (Cambridge University Press, 2003) 180, 208.
[279] Ibid 190. See also Ealing London Borough Council v Race Relations Board [1971] UKHL 3; [1972] AC 342, 362 (Lord Simon) (‘Ealing London Borough Council’).
[280] Australian Law Reform Commission, Essentially Yours: The Protection of Human Genetic Information in Australia (Report No 96, 2003) vol 2, 922 [36.42]. See generally Ian F Haney López, ‘The Social Construction of Race: Some Observations on Illusion, Fabrication, and Choice’ (1994) 29(1) Harvard Civil Rights-Civil Liberties Law Review 1, 6–9.
[281] Australian Law Reform Commission (n 280) 922 [36.41], cited in Eatock (n 271) 300 [169] (Bromberg J). See also Joseph L Graves Jr, The Emperor’s New Clothes: Biological Theories of Race at the Millennium (Rutgers University Press, 2001) 1–2; Arthur L Caplan, ‘Handle with Care: Race, Class and Genetics’ in Timothy F Murphy and Marc A Lappé (eds), Justice and the Human Genome Project (University of California Press, 1994) 30, 30–1.
[282] Tasmanian Dam Case (n 221) 244.
[283] Ibid 243.
[284] Ibid 273–4, citing King-Ansell (n 221), and Mandla (n 221). See also ibid 243–4 (Brennan J).
[285] Tasmanian Dam Case (n 221) 276. See also at 244 (Brennan J).
[286] See, eg, Love (n 1) 229 [210] (Keane J).
[287] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Montgomery (High Court of Australia, Case No S192/2021, commenced 28 January 2022).
[288] Shayne Paul Montgomery, ‘Amended Submissions of Respondent’, Submission in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Montgomery, S192/2021, 5 April 2022, 27–30 [89]–[96]. See also Elisa Arcioni and Kirsty Gover, ‘Aboriginal Identity and Status under the Australian Constitution: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Montgomery’ [2022] SydLawRw 5; (2022) 44(1) Sydney Law Review 137,
137–41.
[289] In Hirama v Minister for Home Affairs [2021] FCA 648 (‘Hirama’), for example, Mortimer J accepted that cultural adoption satisfied the third limb of the tripartite test for ascertaining Aboriginality: at [39]–[40], [45]–[46]. See also Arcioni and Gover (n 288) 147, discussing Hirama (n 289) (citations omitted).
[290] Ofu-Koloi (n 267) 176 (Dixon CJ, Fullagar and Taylor JJ).
[291] McCorquodale (n 212) 18.
[292] The other interpretation being that the decision in Love (n 1) was principally based on Indigeneity: Gerangelos (n 173) 117.
[293] Love (n 1) 211 [137] (Gageler J).
[294] Tasmanian Dam Case (n 221) 273–4 (Deane J), citing King-Ansell (n 221), and Mandla
(n 221). See also Tasmanian Dam Case (n 221) 244 (Brennan J).
[295] Mabo (n 228) 70 (Brennan J).
[296] Ibid. This test includes both self-identification (‘by that person’) and communal recognition (‘by the elders or other persons enjoying traditional authority among those people’).
[297] Arcioni and Gover (n 288) 150.
[298] Ibid.
[299] Love (n 1) 260 [287]. See also Arcioni and Thwaites (n 19) 70; Michelle Foster and Kirsty Gover, ‘Determining Membership: Aboriginality and Alienage in the Australian High Court’ (2020) 31(2) Public Law Review 105, 111–12.
[300] Love (n 1) 317 [458], discussing Mabo (n 228) 70 (Brennan J). See also Foster and Gover
(n 298) 109–12.
[301] Foster and Gover (n 299) 112.
[302] See, eg, Alexander (n 6) 405 [181]–[182] (Edelman J); Ex parte Ame (n 255) 482 [116]
(Kirby J); Foster, ‘Membership in the Australian Community’ (n 19) 179–80.
[303] The High Court has explicitly rejected the application of the doctrine of absorption to the aliens power: Pochi (n 117) 111 (Gibbs CJ, Mason J agreeing at 112, Wilson J agreeing at 116), 113 (Murphy J); Irving, ‘Still Call Australia Home’ (n 19) 149, citing Shaw (n 114); Sangeetha Pillai, ‘Non-Immigrants, Non-Aliens and People of the Commonwealth: Australian Constitutional Citizenship Revisited’ [2013] MonashULawRw 20; (2013) 39(2) Monash University Law Review 568,
589–90; Foster, ‘An “Alien” by the Barest of Threads’ (n 124) 493–4. However, Edelman J appears to favour reconsidering its applicability: Alexander (n 6) 412–15 [204]–[211].
[304] McCorquodale (n 212) 11, discussing Aboriginal Protection Act 1869, 33 Vic, s 8.
[306] Ibid 109.
[307] Arcioni and Gover (n 288) 150.
[308] Eatock (n 271) 334 [314] (Bromberg J). See also Love (n 1) 253 [271] (Nettle J), 273
[337]–[339], 283 [371] (Gordon J), 287 [391]–[392] (Edelman J); Hirama (n 289) [34]–[35], [39]–[40] (Mortimer J).
[309] King-Ansell (n 221) 542. See also at 534–5 (Richmond P), 538–9 (Woodhouse J).
[310] Ibid 542.
[311] Ealing London Borough Council (n 279) 364.
[312] See above Part II.
[313] Nolan (n 15) 193 (Gaudron J).
[314] Alexander (n 6) 422 [232]–[233]. See also at 430–1 [257], 434–6 [266]–[270], 440 [283],
441 [286] (Steward J).
[315] See ibid 422 [233] (Edelman J). See also at 441 [286] (Steward J). However, separate questions emerge in relation to the extent to which citizenship-stripping laws can deem citizens to be ‘non-allegiant’ based on their behaviour: Sangeetha Pillai, ‘Tiered Community Membership in Australia: The Impact of Constitutional Concepts and Contemporary Developments on Refugee Access to Citizenship’ (2019) 65(4) Australian Journal of Politics and History 620, 636, discussing Australian Constitution s 51(xix). As such, the term ‘conduct incompatible with membership’ is inherently uncertain.
[316] Love (n 1) 248 [263], quoting Bropho v Western Australia [1990] HCA 24; (1990) 171 CLR 1, 12 (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ), and Northern Territory v Griffiths [2019] HCA 7; (2019) 269 CLR 1, 48 [62] (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ).
[317] Alexander (n 6) 405 [181]–[182] (Edelman J).
[318] See Jennifer Clarke, Patrick Keyzer and James Stellios, Hanks Australian Constitutional Law: Materials and Commentary (LexisNexis Butterworths, 9th ed, 2013) 158 [2.1.23].
[319] Foster, ‘An “Alien” by the Barest of Threads’ (n 124) 497.
[320] Ibid, discussing Ex parte Te (n 14) 218 [201] (Kirby J).
[321] See, eg, Singh (n 16) 337 [21] (Gleeson CJ), 385 [159] (Gummow, Hayne and Heydon JJ); Kartinyeri (n 24) 366 [40] (Gaudron J), cited in Love (n 1) 178 [31] (Kiefel CJ), 221 [177] (Keane J).
[323] Street (n 242) 571. See also Castlemaine (n 242) 478 (Gaudron and McHugh JJ).
[324] Cf Salmond (n 31) 50–1, 58.
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