Queensland University of Technology Law and Justice Journal
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RE MIMIA; EX PARTE AME — THE
CASE FOR A CONSTITUTIONAL AUSTRALIAN
CITIZENSHIP
PAUL
MARTIN*
[This article discusses the recent High Court decision of Re MIMIA; Ex parte Ame,[1] arguing that the case’s formulation of Australian citizenship — its nature and incidents — both challenges traditional notions of the term’s meaning, and compels an amendment to enact a constitutional status of Australian citizenship. After reviewing the case’s facts and the Court’s reasoning, historical expressions of the status shall be explored, before the Australian citizenship experience is itself examined. Applying the resultant insights to the case’s facts, it is argued that in light of the Court’s decision and the constitutional and legal landscape underpinning such authority, in particular the aliens power of s 51(xix) of the Australian Constitution, as well as on account of the advanced stage in the nation’s development, it is both necessary and apposite to amend the Australian Constitution to provide for an entrenched citizenship status.]
For most states, citizenship forms a key element in the institutional
structure collectively known as government; over the course
of history, the
status has been an important guarantor of individual liberty, ensuring
protection from the whim of government prerogative.
Though the rise of human
rights and other notions sculptured on universality has to some extent
diminished citizenship’s role,
for most people it remains a significant
ingredient in their status as free individuals.
Yet a recent decision of
the High Court of Australia, Re MIMIA; Ex parte
Ame,[2] reminds us that in
Australia at least, this is not so. Concerned with the application of a Papua
New Guinean man claiming retention
of his Australian citizenship in the face of
the purported operation of legislative instruments providing for the
independence of
Papua New Guinea, in 1975, from administration by
Australia,[3] the case explored the
nature and characteristics of Australian citizenship in detail.
In
deciding the case, the Court revealed its opinion as to the status’
limited effect in Australian law: not only does citizenship,
of itself,
guarantee a right of abode, but also is it vulnerable to interference by the
legislature to limit its practical
utility.[4] Australian citizenship,
moreover, remains liable to repeal, neither containing a due process guarantee
nor requiring the holder’s
involvement for the relationship between
her/him and the state to be voided.[5]
These were consequences said to flow from its position as a statutory status.
Re MIMIA; Ex parte Ame thus leads us to re-evaluate citizenship
in the Australian context. After examining the case and its reasoning, this
paper will briefly
survey the historical background in which citizenship has
operated. Following such analysis, the citizenship experience and its function
in Australia will be considered. Applying the resultant insights to the
Court’s reasoning, it will be suggested it is both
apposite and necessary
to enact a constitutional status of Australian citizenship.
Containing,
at minimum, rights of abode and of franchise, such a status would serve to
better protect Australians from their current
vulnerability to governmental
authority. As such, it would more accurately reflect the country’s status
as a modern, independent,
democratic nation.
A Facts
On 3 March 2005, a full bench of the High Court of Australia heard
argument in the matter of Re MIMIA; Ex parte
Ame.[6] The plaintiff, Mr Amos
Bode Ame, had brought proceedings against the Minister for Immigration,
Multicultural and Indigenous Affairs
seeking a declaration and writs of
prohibition and mandamus.[7] The
Minister sought to remove the applicant from Australia pursuant to ss 189, 196
and 198 of the Migration Act 1958
(Cth).[8]
The case centred on
the question of whether the applicant remained an Australian citizen. It was
undisputed between the parties that
the applicant, born in the Papuan highlands
on 20 May 1967, originally possessed Australian
citizenship.[9] However, contention
lay in the combined effect of the Papua New Guinea Independence Act 1975
(Cth); the Papua New Guinea Independence (Australian Citizenship) Regulations
1975 (Cth); and the Papua New Guinean Constitution, which together
purported to transform the applicant and others like him into Papua New Guinean
citizens.[10]
Initial enquiry
focused on reg 4 of the Papua New Guinea Independence Regulations
1975 (Cth), which provided that Australian citizens who became Papua New
Guinean citizens on Independence Day by operation of the Papua New Guinean
Constitution ceased to hold Australian
citizenship.[11] The Papua New
Guinean Constitution relevantly specified that:
65. Automatic
citizenship on Independence Day
(1) A person born in the country before
Independence Day who has two grand-parents who were born in the country ... is a
citizen.
(4) Subsection (1) ... do[es] not apply to a person who —
(a) has a right (whether revocable or not) to permanent residence in
Australia; ...
(5) A person to whom Subsection (4) applies may, within
the period of two months after Independence Day ... in ... such manner as
...
prescribed by ... Parliament, renounce ... his status as an Australian citizen
... and make the Declaration of
Loyalty.[12]
The applicant
maintained that reg 4 did not apply to him on account of s 65(4)(a) of the
Papua New Guinean
Constitution.[13] This was said
to be activated by his Australian citizenship, which ipso facto provided a right
of permanent residence in
Australia.[14] This contention was
denied by the respondent,[15] who
additionally pointed to prevailing migration
law,[16] which required persons such
as the applicant to obtain an ‘entry permit’ to enter (mainland)
Australia.[17]
Subsequent
concern rested with reg 4’s validity. The applicant put that reg 4, in as
much as it proposed executive alteration
of an individual’s fundamental
rights and freedoms, was beyond the scope of regulations contemplated by s 6 of
the Papua New Guinea Independence Act 1975
(Cth),[18] upon which reg 4
rested, given a lack of explicit intention in that provision to function
thus.[19]
Alternatively, it was argued that s 6, to the extent that it
authorized reg 4, was itself invalid in that it proposed to unilaterally strip
the applicant of his Australian
citizenship and thus exceeded the powers
conferred on Parliament by the Australian Constitution, most notably the
aliens’ power of s
51(xix).[20] The respondent resisted
each of these
claims.[21]
B The Court’s Decision
The court unanimously found in favour of the respondent on 4 August
2005.[22] The majority judgment was
delivered by Gleeson CJ, McHugh, Gummow, Hayne, Callinan and Heydon
JJ,[23] with Kirby J providing a
separate, concurring opinion.[24]
In the majority’s opinion, Australian citizenship did not carry an
ipso facto right of permanent
residence.[25] More accurately, the
meaning of s 65(4)(a) was not an abstract or theoretical question, but concerned
practical reality.[26] In this
regard, extant migration law was decisive, notwithstanding its discriminatory or
prejudicial effect on the applicant and
fellow citizens similarly
positioned.[27]
Kirby J took
a comparable approach, additionally emphasizing the contemporaneous
understanding of Australia’s citizenship
regime.[28] In course of judgment,
he cited a Ministerial response to a question concerning the citizenship rights
of Papuans:
We do not even give them the right to come to Australia. An
Englishman who came to this country and complied with our electoral laws
could
exercise restricted rights as a British subject, whereas a native of Papua would
be an Australian citizen but would not be
capable of exercising rights of
citizenship.[29]
In the
event, he too found that reg 4 operated to deprive the applicant of his
Australian
citizenship.[30]
As regards
reg 4’s validity, the majority ignored the broad proposition advanced by
the applicant, instead noting only that
provisions relating to citizenship were
clearly within the realm of potential regulations countenanced by s 6, given the
context of its
enactment.[31]
Kirby J, by
contrast, was prepared to acknowledge the applicant’s claims, but felt
compelled to subordinate them to the concerns
of the
day.[32] That is, he was persuaded
by the relative frequency of similar legislative models in analogous colonial
contexts,[33] and by the
autochthonous foundation of PNG citizenship, which necessitated a diplomatic
Australian response, effectuated by s 6 and reg
4.[34] His Honour further held that
reg 4’s limited ambit, in extinguishing few material rights of the
applicant, justified both its
form and its lack of
explicitness.[35]
As to s
6’s constitutionality, the majority founded their reasoning on the broad
power of s 122[36] of the
Australian Constitution; a capacity to acquire external territory
necessarily entailed a capacity to divest such territory, and incident to this
ability,
Parliament could establish (and hence disestablish) whatever relations
between Australia and the territory’s inhabitants that
it saw
fit.[37] Any intrinsic limits to the
reach of the s 51(xix) power did not act to defeat s 122’s
effectiveness.[38]
Moreover,
s 6 could be supported by s 51(xix) itself: where a distinct, sovereign entity
claiming ascendancy over a specified class of persons emerges out of territory
externally
acquired by way of s 122 — as occurred here — it is
within power for Parliament to treat those persons as aliens, withdrawing their
Australian
citizenship.[39]
Kirby J’s logic was similar. His Honour upheld s 6’s
validity on account of both s 122 and s 51(xix), for the reasons given
above.[40] He further noted,
however, that because of its limited nature in practice, the applicant’s
citizenship did not preclude his
coming within the scope of s 51(xix) before the
commencement of s 6 and reg 4.[41]
The character of the citizenship and the historical circumstances of the time
neither required Parliament, upon such commencement,
to afford the applicant due
process rights in relation to the abrogation of his
citizenship.[42]
C Implications
Re MIMIA; Ex parte Ame is one of a string of recent High Court
decisions which form much of the jurisprudence on the nature and incidents of
Australian
citizenship.[43] Taken in
conjunction with earlier authorities, the reasoning expounded by the Court leads
to several implications which challenge
traditional notions of what the status
entails.
Firstly, Australian citizenship does not carry with it an inviolable
right of abode. Despite earlier related
authority,[44] the Court was
prepared to uphold the idea that formal citizenship does not of itself confer
unqualified rights of entry to, residence
in and presumably, protection against
deportation from Australia upon the
holder.[45]
Secondly, by
upholding the artificial definition of ‘Australia’ appearing in the
Migration Act 1958 (Cth),[46]
the Court implicitly acknowledged an ability for Parliament to limit the freedom
of movement of its citizens, in addition to its
already existent power to
regulate the entry and movement of aliens within the
country.[47]
Thirdly, by
adopting the chosen interpretation of reg 4 and by maintaining its validity, the
Court disavowed the argument put by the
applicant in oral hearing that the
Court, in both constitutional and legislative interpretation, is constrained by
an unqualified
duty to proceed in a manner consistent with protection of a
citizen’s rights.[48] Kirby
J’s assertion that the applicant was subject to the aliens’ power
from birth[49] may also be so
classed.
Fourthly, in attesting s 6’s constitutionality, the
majority explicitly affirmed its position that citizenship is not a bilateral
relationship, requiring
involvement of the individual in any redefinition of the
association between her/him and the
state.[50]
Fifthly, and
relatedly, the Court’s validation of s 6 served to confirm that no
universally applicable right of due process exists in the event of proposed
legislative repeal of an individual’s
citizenship
status.[51]
Notwithstanding
the uniqueness of the applicant’s case and the (dubious) assertion that
the foregoing principles may be confined
to instances of citizenship acquired
pursuant to Commonwealth exercise of its external acquisition
power,[52] the above provides cause
for concern. Indeed, it is arguable any circumscription of the Court’s
findings to a limited class
of individuals is in itself worrisome, establishing
as it does a brand of second-class citizenship.
Re MIMIA; Ex parte
Ame thus leads us to re-evaluate citizenship in the Australian context. In
order to undertake such a venture fruitfully, it is necessary
that the
historical background in which citizenship has operated be considered. Such
analysis will inform an understanding of the
Australian experience and hence
assist us to consider how Australians might be better protected from the
vagaries of governmental
authority.
III CITIZENSHIP: A HISTORICAL
OVERVIEW[53]
A Historical Beginnings
It was Ancient Greece where citizenship was established as the formal
linkage between individual entitlement and full membership of
the
community.[54] As a status of
privilege conferred by the state upon an individual, Athenian citizenship was
rooted in notions of commonality, freedom
and civic identity, and hence
emphasized duties more than
rights.[55]
Key incidents of
such citizenship included rights to elect and stand for public office, and
duties to pay taxes, to undertake military
service, to serve on juries and to
maintain law and order.[56] Indeed,
the right to vote was conceptualized as duty as much as right, for the essence
of the civic republican model was a tight-knit,
well-organized political
community. To that end, citizen involvement in public affairs was seen as
crucial to the ongoing health
of the
state.[57] Thus the association
between citizenship and democracy was formed.
Roman citizenship, like
Athenian citizenship, was
duty-oriented.[58] Most notable was
its use as an incentivized policy device; as a status of value, its bestowal was
deliberately adopted by the Empire
as a means of avoiding war and amassing
territory and inhabitants.[59]
Detached from its traditional anchor of locality, citizenship thus became a tool
by which to freely mould membership of the community.
With Rome’s
decline, and with the subsequent spread of monarchy across Europe however, the
status retreated, not to fully re-emerge
for several centuries.
B The Modern Roots of Citizenship
Entrenchment of monarchy led to a contraction of individual autonomy: the
status of monarchical subject was characterized by widespread
duties based on a
‘personal, permanent and absolute’ tie of allegiance owed to the
sovereign,[60] and by a distinct
lack of rights.[61] In time,
however, the mutuality of obligations between ruler and ruled was asserted and
came to be accepted.[62] With
society’s gradual secularization, this was developed into the idea of the
social contract, most famously expounded by
Rousseau.[63]
An extreme form
of civic republican or duty-oriented citizenship, Rousseau’s approach held
that only by utter devotion to the
state and repudiation of any pre-existing
rights or bonds did the citizen manifest himself as
such.[64] Rousseau’s citizens
were both constitutive of and subordinate to the ‘general will’ of
the state, by which their
rights were guaranteed and liberty could be best
preserved.[65]
By explicitly
positing the citizen as the state’s foundational unit, Rousseau firmly
established the modern alliance between
citizenship and
nationhood.[66] Though radically
democratic, the implementation of his ideas in Revolutionary France and their
ultimate perversity demonstrated citizenship’s
greater concern with
nationalism than democracy.[67]
Future historical events confirmed and further strengthened this axiomatic
linkage.[68]
An alternative
understanding of citizenship arose in the natural law theory of
Locke.[69] Asserting, like Rousseau,
the social contract’s popular nature, he differed in attesting the
pre-political character of individual
rights, which endured despite
government.[70] The liberal
citizenship that emerged with the founding of the United States of America was
accordingly marked by a coolness towards
duties, focused instead on protecting
rights from governmental
interference.[71]
Embedding
such rights in a written constitution was one means of achieving this: the
averral of a pre-political social space carried
the implication that limits
existed to sovereign authority. Hence constitutionalism, as the manifestation of
this doctrine, began
gaining popular currency from the American Revolution
onwards.[72] As the centre of the
socio-political structure, the citizen was the primary beneficiary of such a
theory,[73] and the
citizenship-constitution link was thus forged.
The institution of
republican government in the USA and France renewed and further annealed the
historical association between citizenship
and democracy. As the antithesis of
monarchical rule, the locus of sovereignty was held to reside with the people;
as the constituent
unit of the polity, it was the citizen who was posited as the
embodiment of democracy.[74]
Liberalism’s spread was not confined to these two nations however, and
across Europe, the legitimacy of monarchical rule was
increasingly
questioned.
In England, particularly, great strides had been made against
the pretensions of absolutist rule. Freedom of conscience emerged from
the
religious disputations of the sixteenth and seventeenth centuries, with the
resultant pluralism affirming freedom from royal
prerogative, freedom from cruel
and unusual punishment and freedom from a standing army, among
others.[75] These and the related
rights of habeas corpus, equality before the law and due process formed the core
of protections accorded to
subjects and, in time, essential elements of liberal
citizenship.[76]
Further
liberties retained by British subjects integral to the liberal citizenship model
included freedoms of speech, religion, movement
and peaceable assembly, as well
as the right to petition the
sovereign.[77] With limited rights
of franchise,[78] subject status
came to be functionally equivalent to, if theoretically distinct from,
citizenship.[79] However while
citizens were generally able to source their rights in a written constitution,
it was the common law that largely secured
the freedoms of British
subjects,[80] meaning their
materiality depended chiefly on adherence to principles of responsible
government.
C Citizenship’s Modern Dominance
With time, the citizenship-nationality tie continued to strengthen,
though the latter conveyed a different meaning from that admitted
today; with
the exception of politically mature, well-defined nations like Britain and
France, ‘nation’ denoted a socio-cultural
term as much as a
political one when used vis-à-vis
citizenship.[81] With the broad
emergence of the modern nation-state throughout the nineteenth century then,
citizenship became a key aspect of nation-building
and the politics of identity
associated
therein.[82]
Indeed, as a
central tenet of ‘the civil religion of modern
society’,[83] citizenship
formed, as in Roman times, the ‘membrane of social
membership’.[84] By
establishing boundaries for inclusion in or exclusion from the polity, states
were able to shape civil society through the process
of social closure —
in defining and specifying ‘others’, unity amongst those counted in
the nation as citizens
could be
guaranteed.[85]
Citizenship’s
actual content continued to wax and wane with the socio-political matters of the
day and the historical traditions
of the society in which they were
debated.[86] Importantly, extension
of the franchise continued until viewed as a standard incident of
citizenship,[87] and with
crystallization of the nation-state structure, the right of abode became
similarly classed.[88] With the rise
in influence of socialist thought, welfare benefits and affiliated concepts were
judged by many also to be among citizenship’s
essential
features.[89]
Citizenship
thus emerged as the locus around which transactions between the state and its
constituent units were conducted. As the
bond linking government with governed,
the status became a solution to the problem of tacit coordination; that is,
citizenship came
to represent an accepted and well-understood bargain between
actors, conferring benefits upon its holders on the one hand, and ensuring
stability of the state on the
other.[90] This combination of
utility and necessity assured both its moral and legal force and its ongoing
place at the heart of civic life,
as a status to be proud of and jealously
protect.[91]
Though
citizenship has now passed such a high-water
mark,[92] it remains for most people
the touchstone of their status as free
individuals.[93] In light of this,
and of the Court’s reasoning as expounded above, it is appropriate to turn
to the citizenship experience
in Australia. Such exploration will assist us to
understand both the Court’s decision, and how, in Australia, the status
might
be re-formulated to provide a more meaningful protection against
governmental interference.
IV THE AUSTRALIAN EXPERIENCE
Australian citizenship is most notable for its absence from the
Australian Constitution. While constitutional authority to legislate with
respect to citizenship clearly
exists,[94] the status itself is
merely statutory, not constitutional. The explanation for this rests in the
peculiarities of Australian history.
A Early Days
As members of the British Empire, the early colonists took immense pride
in being British subjects. Indeed by the 1850s, with the
Empire at its zenith,
it was felt there existed no greater claim than that of serving the Queen, under
God, with the appurtenant
liberties and protections that the common law
provided.[95] To be British was to
be civilized, that is, materially more advanced and thus culturally superior to
all other races.[96]
In this
environment, the idea of federating the six separate colonies emerged. Though
not to occur for several decades, the concept
was intuitively appealing as well
as practically grounded.[97] The
need for a common immigration policy was particularly felt, as the influx of
Chinese into Victoria and New South Wales, together
with the importation of
Kanaka labourers into Queensland, challenged traditional notions of the country
as British.[98]
This sparked
discussion as to what it was to be Australian. It meant, of course, being
British, but did it mean anything
else?[99] Thus the debate about and
cultivation of a distinct national identity commenced, in turn highlighting two
recurrent themes of Australian
history: the unique malleability of Australian
nationality, and the concern to consciously craft a state along utopian
lines.[100]
Certainly, to
be Australian was to be civically-oriented. It was to be loyal and law-abiding,
with duties towards family and community;
it was also to serve God and the
British Empire.[101] Though to
furthermore enjoy the freedoms of a liberal society, it was not to be
self-asserting; instead, the image of an active,
if respectable, member of the
public predominated.[102] Most
crucially, it was to be
white.[103]
B The Colonial Legacy
This was the manner in which ‘citizenship’ was used
throughout the 1890s and was understood by the Framers in discussing
its
possible inclusion in the new Australian Constitution. Despite the
theoretical nonsense attesting potential installation of such a status in a
governmental system crowned by
monarchy,[104] many felt the need
for a fulcrum of national identity greater than subject
status.[105]
However,
pinning down what citizenship should entail proved difficult, in practice
— common usage of the tag did not mean agreement
about its legal
incidents.[106] Firstly, it was
unclear whether citizenship was merely a legal status; if so, who would be
classed a citizen?[107] Was the
criterion to be the same as for subject status? Furthermore, if rights and
responsibilities were to attach the status, which
were to be
enshrined?[108] Moreover, what
would such a regime imply for control of
immigration?[109]
For many
delegates, the term was simply superfluous: as British subjects, Australians
already had the assurances of the common law
as guaranteed by
Parliament.[110] Not only would
introducing such a status be fraught with unfamiliarity — in contrast to
retention of the status quo —
but in reserving its ultimate interpretation
to the courts, such an arrangement would be to deny the efficacy both of
responsible
government and the underlying system of representative
democracy.[111]
Undoubtedly, citizenship’s republican connotations also troubled
many delegates. Despite its association with the forging of
Australian identity,
Federation was not understood as challenging British sovereignty or the
superiority of its
institutions,[112] which formal
legal citizenship arguably did.
Greatest concern, however, lay with the
potential effect of citizenship on the ability to regulate immigration. Any
restrictions on
the project of making the nation ‘a home for Australians
and the British race
alone’[113] were anathema;
in particular, the fear of being forced to admit Hong Kong Chinese as British
subjects (and hence citizens) loomed
large.[114] While several
delegates were comfortable with a discrimination-based citizenship, others were
not.[115]
In the event,
unimpaired freedom to regulate aliens was seen as the best guarantor of a shared
feeling of nationhood.[116] The
idea of inserting citizenship into the Australian Constitution
faded, overshadowed by specific powers to legislate with respect to
aliens,[117]
immigration,[118] and relations
with the islands of the
Pacific.[119]
C An Infant Nation
A nation half-sure of itself thus stole into the dawn of the twentieth
century. The decision to omit citizenship from the Australian
Constitution indicated a country more confident of what it wasn’t than
what it positively was; by instead emphasizing the power to exclude,
the pattern
of defining Australia from the outside in found footing in the deepest channels
of governmental structure.
Indeed, such a framework served to infuse a
notion of ‘privilege’ into membership of the Australian community,
and establish
an imbalanced relationship between the state and its constituent
units;[120] without the equal
platform of a constitutionally-entrenched status to defend oneself from, the
legislature could aver itself supreme,
drawing the boundaries for membership of
the polity as it saw
fit.[121]
Yet this was not
wholly so, for an independent
judiciary[122] and a written
constitution testified to a belief in definitive limits to governmental
authority. In fact, the hybridized, Anglo-American
model of government that
emerged from the Convention Debates explains much of the tension surrounding the
subject; on the one hand,
a strident belief in the imperial model of responsible
government, on the other, a republican desire to fix the limits of such
government
in a superior written text, backed by impartial review of its
terms.[123]
It is ironic
then, that in a constitution devised by popularly-elected delegates and ratified
by the people themselves, no categorical
statement defining for whose benefit it
was drafted appears.[124] The
Australian government was thus uniquely positioned to fashion national identity
not around an inviolable rock of citizenship,
but on an amorphous notion of
alienage.
Such ‘citizenship’ as developed in the
nation’s early years then — for the term continued use, despite its
absence from the formal legal
landscape[125] — was in
practice a collection of attributes by which the holder could not thus answer
the description of either ‘alien’
or ‘immigrant’ as
interpreted by the High
Court.[126] Prepared to assert
power of a largely plenary nature, the Court hence affirmed a civically-oriented
concept of community membership,
loaded with explicitly racist
overtones.[127] The position of
responsible government as the underwriter for liberty thus betrayed its first
signs of unsteadiness.
Notably, the right of franchise was among the
‘sacred cows’ evidencing non-alien
status.[128] This can be explained
by theorizing that no government acting responsibly would treat individuals upon
whom its legitimacy was based
as
aliens.[129] Hence, the
disenfranchisement of certain classes simultaneously allowed to retain British
subject status,[130] while further
attesting the contingent nature of Australian freedoms, disclosed the centrality
of the vote, more than subject status
or ‘citizenship’, to
Australian civic identity.[131]
The judiciary’s use of ‘citizenship’ as a
residuum[132] thus stationed it as
a posterior status; that is, as resulting from membership of the community
rather than guaranteeing it in the
first instance. Indeed, it is arguable this
conception persists and is visible in the Court’s decision in Re MIMIA;
Ex parte Ame.[133] Thus, when
citizenship finally entered the Australian legal lexicon in 1949, it found
itself eclipsed not only by the aliens’
power and by the vote, but also by
an established extra-legal familiarity with the term.
D Modern Australian Citizenship
The passage of the Nationality and Citizenship Act 1948 (Cth)
signified a country growing in self-confidence. Yet the Act’s designation
of Australian citizenship as (merely) providing
British subject
status[134] tempered nationalist
excitement, and indicated citizenship’s retention as a culturally
normative status. Indeed, its silence
regarding the consequences of citizenship
was noteworthy; it was instead left to individual pieces of legislation to
discriminate
on the basis of legal
status.[135]
Mostly, British
subject status was the relevant threshold
requirement.[136] Indeed, the
relative unimportance of citizenship in this regard perseveres; a survey by
Rubenstein[137] shows the status
material only vis-à-vis
voting,[138] the holding of a
passport,[139] and immunity from
operation of the Migration Act 1958
(Cth).[140] Even here
citizenship is not decisive, as the ability of British subjects on the electoral
roll before 26 January 1984 to continue
to vote
demonstrates.[141]
Relatively empty then, legally speaking, citizenship was promoted as
conclusive evidence of full commitment to the Australian
community.[142] Heavily integrated
with the assimilationist experiment of large-scale, non-Anglo-Saxon migration
marking the 1950s and 60s, the status
was cast as ‘the ultimate
achievement for
newcomers’.[143] Indeed, as
a novel concept under Australian law, citizenship was throughout this period
generally associated with
naturalization.[144]
Control over eligibility remained strongly regulated
however,[145] and thus citizenship
as a privilege, promised by the nation’s constitutional structure, was
mirrored in statutory practice:
citizenship announced membership of a club,
carrying moral and legal weight
equally.[146] With the success of
such a regime, and immigration more broadly, requirements were relaxed and the
status given more stability, without
its object being
altered.[147] As the British
Empire declined, a nation gradually emerged from its shell; with the above-given
exception, British subject status
had disappeared from Australian law by
1987.[148]
Citizenship
endures in such guise today, resultant from and subordinate to the greater
project of nation-building — as Dauvergne
notes, migration law, not
citizenship law, constitutes the biggest hurdle to full membership of the
nation.[149] The first Citizenship
Minister was in fact only appointed in 2001, the portfolio’s
responsibilities having until that time
been part of the Immigration
Minister’s activities.[150]
Though nation-building remains on-going, signs of increased self-assuredness and
conviction regarding national identity continue
to be manifested; a recent
legislative amendment now allows eligible Australian-born citizens to hold dual
citizenship.[151]
Having
briefly surveyed the history of Australian citizenship then, it is appropriate
to return to the paper’s focus: the Court’s
decision and associated
illumination of individual Australians’ vulnerability to governmental
authority. Applying the foregoing
insights to the case’s reasoning, it
will be suggested reform to enact a constitutional status of citizenship is both
apposite
and necessary in light of the Court’s decision.
V A CATALYST FOR REFORM
A Citizenship Devalued
Veritably, citizenship in Australia has had a ‘slow, staggered, and
disconnected legal
evolution’.[152] As
discussed earlier, the status usually denotes formal membership of the
community, carrying an associated array of freedoms or
limitations on
governmental authority with it, foremost of which — but not exhaustive of
— today are the right to reside
in the community (the right of abode) and
the right to shape its direction (the right of franchise). In this way,
citizenship ensures
the integrity of the community and its administration, as
well as providing that of the community members themselves.
However, far
from being the site around which the government-governed relationship has been
based, citizenship has been the forgotten
poorer cousin of Australian
constitutional law: not only is it a contingent or statutory status, but it
confers few rights upon its
holders. This is not to say that Australian law, in
both its common law and statutory forms, provides insufficient liberties or
restrictions
upon governmental authority, but these are generally impugnable or
not beyond attack, as recent legislation
suggests.[153] The result then, is
a gap between citizenship as a formal status and as an active, actual membership
of the community.[154]
This is clearly seen in the Court’s decision. Despite the
proposition’s apparent absurdity, it was held the applicant’s
citizenship was hollow at law, owing to its lack of substantive rights and
immunities.[155] That is, its
practical attributes were allowed to circumscribe its legal operation, and not
the reverse. In fact, citizenship was
cast in such purely administrative terms
that even a definitionally inseparable concept such as the right of abode was
unable to
be imputed in light of contravening executive practice and in the
absence of explicit textual
support.[156]
Such
absurdity is mitigated by its constitutional underpinnings however; the
immigration, aliens and territories powers have long
been drawn as government
trumps, able to justify a large range of legislative
measures.[157] Thus the
applicant’s citizenship could be rendered meaningless: unable to guarantee
residence, unable to guarantee freedom
of movement and unable to assure immunity
from the fickleness of government whim.
Aside from affirming full legal
citizenship as a culturally normative status, the Court’s decision, in
averring the capacity
of citizenship’s appurtenances to determine its
ultimate legal force, is notable for supporting a legislative ability to
‘deal
citizens ... in and out of the legislative
pack’[158] and thus the
national polity: the want of practical utility attending the applicant’s
citizenship flowed not from the source
Australian Citizenship Act 1948
(Cth), but from legislative provisions building on such a
status.[159] The Court hence
implicitly upheld a capability to indirectly deprive an individual of her/his
citizenship
status.[160]
The
applicant’s situation, of course, was the obverse of that encountered in
the British subject cases.[161]
Here, the question arose of whether long-term British residents in Australia,
electing not to take up Australian citizenship despite
legislative amendments
removing the status of ‘British subject’ from the Australian
Citizenship Act 1948 (Cth), could fall within the aliens power. After
prolonged wrangling, the Court has resolved they
may,[162] despite the absorption
and full membership of such individuals in the Australian community.
Taken collectively then, neither formal citizenship nor substantive
community membership alone assures citizenship in the sense of
being beyond the
aliens’ power. Given this, and ongoing uncertainty associated with
potentially protective constitutional phrases
like ‘the people of the
Commonwealth’,[163] it is
discomforting to know individual liberty rests somewhat upon the goodwill of a
(ir)responsible legislature. Indeed, it is at
variance with the country’s
status as a modern, independent, democratic nation.
The key feature of
the Court’s decision is its expansion of the aliens’ power. Prior to
the Court’s judgment and
that handed down in Singh v The
Commonwealth[164]
(‘Singh’) a year earlier, it was settled law that the
statutory status of citizen was coincident with the constitutional status of
non-alien.[165] Yet
Singh’s holding that alienage connoted the owing of allegiance to a
foreign sovereign[166] laid the
ground for an enlarged reading of the power, attained in the Court’s
holding that formal citizenship does not prohibit
such an individual being
classed an alien.[167]
While the Court’s remarks in Re MIMIA; Ex parte Ame
regarding the reach of the aliens power are ultimately constrained by the
case’s facts, and by the repeated emphasis on the
territories power more
than the aliens power as a tool of de-citizenship, the Court’s opinion was
novel in that the applicant,
unlike previous parties before the Court in allied
circumstances, had never held other than Australian
citizenship.[168] As Prince notes,
the case raises questions as to the status of Australians holding dual
nationality;[169] this appears to
be so, whether the individual’s citizenship is by birth or by
naturalization.
Indeed, more than 100 years after its inception, the
aliens’ power has now reached a new, disturbing zenith. Despite judicial
mutterings that its application is not infinite and that the term cannot be
defined as broadly or distortedly as Parliament
wishes,[170] several justices do
not seem as willing to constrain the
legislature.[171] Moreover,
assurances that the aliens power could not be used to deprive the citizenship of
individuals with claims ‘stronger
in law and
fact’[172] than the
applicant may be regarded as hollow; in light of the foregoing analysis and
given the bond in Australia between the right
of franchise and the
constitutional status of non-alien, dual citizens ineligible to
vote[173] may at the least adjudge
their citizenship as more susceptible to annulment than that of the remainder of
the Australian community.
The above demonstrates that truly, Australian
citizenship has been devalued. With the continued deportation of individuals
having
spent nearly their entire life in
Australia,[174] citizens ‘in
all but law’,[175] and with
government threats to strip dual nationals of their Australian citizenship if
convicted of terrorist
offences[176] — some of
which contain worrying levels of ambiguity in their
drafting[177] — it is not
alarmist to assert alternatives to the current arrangement need be
considered.
B The Case For Reform
McHugh J reflected in Singh that he found it difficult to
designate a natural-born subject of the Queen an ‘alien’ for
constitutional purposes.[178] The
dissentient nature of his comments shows how much things have changed; as noted
above, one reason for excluding citizenship from
the Australian
Constitution was the protection Australians retained as common law subjects.
The foregoing discussion indicates that the system of responsible
government
upon which the worth of such a status was predicated has failed, at least in the
Australian context.
One reason for this might be the existence of the
Australian Constitution itself. It was suggested above there exists
inherent tension between the notions of constitutionalism and of responsible
government
— it may well be that in a battle between the two, it is
natural for the former to prevail. That is to say, where expansive
powers exist
under a written document, these will generally overwhelm the connate protections
of a historically-bound system of restraint.
Certainly, governments are not
usually averse to affirming an expanded understanding of their
abilities.[179]
Indeed,
such a description fits the foregoing characterization of the two theories;
responsible government as avowing unabridged sovereignty,
limited only to the
extent that it is divided between actors, constitutionalism as averring a
pre-political social space.[180]
In a constitution like Australia’s then, containing virtually no
assurances of individual
liberty,[181] this pre-political
space is small; it makes sense that government would thus seek to enlarge its
domain under the rubric of responsible
government, using the Australian
Constitution itself as the legitimating leverage.
While the adoption
of responsible government as the leitmotif of Australian constitutional
structure was a wholly natural consequence
of Federation, it was misplaced in as
far as it asserted the pertinence of the system’s historical underpinnings
to Australian
society. Australia’s history, however, was nothing like that
of England — never were there despotic monarchs to be resisted,
never were
there undiscovered freedoms to claim and fight for; by contrast, the narrative
was a rather pedestrian one, laced only
with xenophobic
mistrust.[182]
Thus,
without historical imperative to act as a brake on government, a constitution
like Australia’s with its reliance on the
common law was destined to prove
a poor substitute. It might have been supposed that in fact, government itself
needed controlling,
lest it ordain itself emperor. This holds despite the
peaceful nature of Australian independence; the American Revolution’s
violence only made it plainer that governments were to be equally as feared as
monarchs.
Yet the Framers weightily supposed that being in control of
government from the outset, they would be able to stamp their authority
and
vision on the system forever, ensuring it would not deviate from their
ideals.[183] Power, however, is a
remarkably slippery thing; while the racism colouring the nation’s birth
has faded (though not
disappeared),[184] the aliens
power remains as virile as ever, as this paper has demonstrated. Thus the nation
retains only a definitive, all-pervasive
capacity to exclude, lacking an
equivalent inclusive capability.
C A Constitutional Citizenship
The disease being constitutional, so must be the solution. While
Australian identity has proved remarkably pliable, from the days
of the White
Australia Policy,[185] through
assimilation[186] and
integration[187] to the
multiculturalism we embrace
today,[188] it is time to ensure a
stability commensurate to the distinctiveness of our nationality. This can be
achieved through reform to enact
a constitutional status of citizenship.
Such a status need only be as strong as the threat faced from other
parts of the Australian Constitution; thus, for example, it would not be
necessary to attach freedom of religion to any potential
citizenship.[189] In this respect,
it should be stressed that rights of entry, of residence and of protection from
deportation are vitally important
and as such, should be explicitly established
in the form of a right of
abode.[190] Indeed, in an era
where the domestic law term ‘citizenship’ corresponds with the
international law term
‘nationality’,[191]
there is probably no more fundamental element of citizenship than the right of
abode.
Though citizenship’s concern with nationality remains
unmatched, its affiliation with democracy runs a close second. As noted
above,
states built upon the will of their constituent units have been deeply
associated with citizenship, and thus it is apposite
for any such constitutional
status to reflect this notion. Such a provision should be crafted so as to
complement the system of representative
democracy established by ss 7 and 24 of
the Australian
Constitution;[192] one
possible alternative appears in the Appendix at the end of this
paper.[193]
Indeed, welding
citizenship to the right to vote is, in the Australian context, crucial. As
previously suggested, the right of franchise
has long been conceived as more
central to civic identity than citizenship itself, as the abovementioned example
of indigenous Australians
illustrates.[194] The unanimity of
the Re MIMIA; Ex parte Ame
verdict,[195] in contrast to
the split of opinion surrounding the British subject
cases,[196] merely provides
further support for this
thesis.[197]
Such an
arrangement would elevate the worth of citizenship in the public mind. This in
turn might lead to a more assertive polity;
as earlier intimated, the evolution
of national identity has reached a point where a relationship of privilege
between the government
and its people just cannot
abide.[198] Though as an
institution Parliament possesses a proud history of championing the liberty of
individuals, the discussion above illustrates
that in Australia it has betrayed
that legacy in context of citizenship.
In a modern, independent,
democratic state like Australia, prosperous and free, it is incongruous that the
very individuals responsible
for creating such an environment do not have an
inviolable stake in it. Thus, far from removing control of citizenship from a
democratically
elected Parliament, providing for a constitutional status of
citizenship can be seen as relocating the status to more fortified surrounds
where it will better serve the interests of those for whom it exists.
Added motivations arise for enacting citizenship as a constitutional
status. As many works have
documented,[199] Australia has
grown from a colonial outpost based on crude ideas of eugenics to a nation-state
teeming peacefully with a variety
of ethnicities. The success of the Australian
experiment is somewhat remarkable, especially when compared with other
nations’
experiences,[200]
and the societal celebration of diversity, combined with legislative traits like
the ability to hold dual citizenship, speaks of
maturity and self-assuredness
vis-à-vis national identity.
It is apposite that this be
reflected in the Australian Constitution itself then, the actual and
symbolic contract between government and governed. Indeed, such a move would
serve to affirm the success
of the Australian experience, act as a renewal of
vows and acknowledge the sincerity of the bond between the state and its
constituent
units. Such ends may be advanced as particularly invaluable given
the arguable emergence in recent times in Australia of a rising
antipathy
towards
multiculturalism.[201]
The
criterion appropriate for circumscribing citizenship is a separate issue from
that of its content. It should be noted that two
main strands exist within the
citizenship tradition: jus soli (citizenship by birth) and jus
sanguinis (citizenship by
descent).[202] The Australian
regime retains elements of each, with birthright citizenship more pivotal and
restrictions operating on
both.[203] As discussed above,
citizenship can also be acquired by naturalization, subject to fulfilment of the
prescribed criteria as adjudged
by the Minister; these include maintenance of
permanent residency status for at least two years and possession of a basic
knowledge
of English.[204]
No reason exists to believe the current regime lacks efficacy or is
inappropriately adapted in terms of policy focus. It needs remembering,
moreover, that it is indeed migration law and not citizenship law which is the
nation’s true shaping device; the current concern
is simply to cement and
affirm the status of those already members of the community, not to impinge upon
a rightly separate function.
As such, the criteria regulating the operation of
citizenship by birth and by descent should be incorporated into the
Australian Constitution in their present form, modified only to
ensure harmony with relevant naturalization
provisions.[205]
As
regards citizenship by grant — naturalization — its non-automatic
character raises difficulty as to the form in which
it should appear in the
Australian Constitution. Relevant to this is a noteworthy proposal
advanced by Rubio-Marin, who argues citizenship outmoded and length of residency
more
relevant in determining who constitutes the
community.[206] Under her
proposal, all those living in a liberal democratic state on a permanent basis
would be recognized as community members,
entitled to full political and social
membership within that
group.[207]
Such a scheme
presents as attractive, given the phenomenon of mass migration and the
politicization of citizenship, as an aspect of
community membership, attendant
to this trend.[208] As such,
citizenship by naturalization should be incorporated into the Australian
Constitution so as to operate in a self-executing manner after a qualifying
permanent residency period; five years would seem appropriate, given
the current
combination of a two-year waiting period balanced with Ministerial
discretion.[209] Retention of the
English language requirement is desirable to ensure commonality at the heart of
the citizenship bargain.[210]
The current regime’s exceptions and
qualifications[211] would have to
be significantly rationalized to be incorporated into the Australian
Constitution. While consolidation is one means to achieve this, it is
preferable to allow those currently eligible to apply for citizenship to
remain
so under the altered scheme, to license Parliament to waive eligibility criteria
where it deems appropriate, and to permit
debarment to be prescribed similarly,
subject to a core standard sufficiently tight to prevent bad faith legislative
exploitation;
allowing parliamentary interference only where those to be deemed
ineligible have committed acts inimical to the interests of the
Australian
community is an apposite
yardstick.[212]
It should
be noted that a full-scale bill of rights is not being
advanced.[213] As suggested above,
constitutional citizenship need only be as strong as is necessary to offset
aspects of the Australian Constitution which impinge on individual
liberty. It is important that constitutional citizenship not replicate its
common law and statutory relations
in either allowing a space to emerge or
providing a focal point for exclusionism; the above proposal acknowledges this
by creating
a citizenship that is robust, yet narrow in its entitlements and
broad in its accessibility.
Given the Court’s decision, it is
necessary to include a clause to guarantee freedom of
movement.[214] What other features
should also be definitely attached is beyond the immediate scope of this paper.
While argument certainly exists
to support incorporation of traditional common
law rights into any amended regime, the considerations underlined in the
preceding
paragraph suggest the citizenship proposal advanced in this paper is
adequate to address the issues discussed above.
Given the popular nature
of the proposed amendment, reason exists to believe that despite the poor strike
rate attached to constitutional
referenda in Australia, such an alteration to
the Australian Constitution could be passed. As guarantor of the
people’s interests then, the Australian government should earnestly
proceed to introduce
legislation consonant with the above proposal. A
representation of what this might look like appears in the Appendix at the end
of
this paper.
VI CONCLUSION
It is unlikely, however, that such a course of action will be pursued.
Since coming to office in 1996, the Howard government has displayed
a consistent
disregard for the legally entrenched rights and freedoms of
individuals.[215] Under its watch,
centuries old liberties have been wound back, and the status of Australians made
less secure, as this paper has
demonstrated.
Re MIMIA; Ex parte
Ame forms part of this trend. While the decision itself is perhaps beyond
criticism, the reasoning employed by the Court certainly cannot
be so classed;
Australian citizenship was formulated in such purely administrative terms so as
to be meaningless — the Court
felt unable to attach to it a right of
abode, a right to not have the status repealed by executive order, or a right to
due process
in the event of proposed repeal.
Such a conception of
citizenship is at clear odds with historical expressions of the status. While
the civic republican model differs
from its liberal counterpart in emphasising
the primacy and unity of the state over the autonomy and ultimately, the
inviolability,
of the individual, neither mandates the imbalanced and unequal
relationship characterizing Australian citizenship.
The reasons for
Australian citizenship being so constituted are largely historical. Building the
country from a background of racial
superiority, the Framers were concerned to
maintain such a project’s impetus. It was felt constitutional citizenship
would
impinge upon this, and a plenary power to regulate aliens, when considered
with the liberties Australians retained as common law
subjects, was agreed a
more effective means to national unity. When the term did enter the legal
landscape in 1949, in statutory
form, it thus found itself subject to an order
in which national identity was shaped from the outside in.
Always, then,
has citizenship occupied a modest role under Australian law. Arguably, this is
inappropriate in light of the Court’s
decision and other, related
authority which, when taken collectively, highlights the continued expansion of
the aliens power and
the vulnerability of Australians to governmental
prerogative. It is incongruous that it in a modern, prosperous, democratic state
like Australia, its people should be forced to rest upon promises of responsible
government in the face of continued violation of
its most basic premises.
Thus, an amendment should be introduced to enact a constitutional status of
Australian citizenship. As mentioned, such a status need
only be as strong as is
necessary to counter threats from other parts of the Australian
Constitution. Preliminary analysis has suggested the rights of abode and of
franchise as its chief elements; further work, however, is required
to determine
its exact shape. If Australian citizenship truly is to be ‘a way of
uniting ... the people of Australia as
one’,[216] this needs
reflecting in law as well as rhetoric.
APPENDIX
Australian Citizenship
(1) There shall be a legal
status known as Australian citizenship.
(2) Australian citizenship shall be
obtainable only by the means stated in this section.
(3) (a) Subject to
this sub-section, a person born in Australia after the commencement of
this section shall hold Australian citizenship.
(b) A person born in
Australia after the commencement of this section shall hold
Australian citizenship by virtue of that birth if and only if:
(i) a parent
of the person held, at the time of the person’s birth, Australian
citizenship or permanent residency status; or
(ii) the person has,
throughout the period of five years commencing on the
day on which
the person was born, been ordinarily resident in
Australia.
(4) A person, not holding Australian citizenship, who:
(a)
under a law in force, is adopted by a holder of Australian citizenship or
jointly
by two persons at least one of whom holds
Australian citizenship; and
(b) at the time of the person’s adoption
is present in Australia as a permanent
resident;
shall hold Australian citizenship.
(5) A person born outside Australia (in
this subsection referred to as the relevant person)
shall hold
Australian citizenship if:
(a) the name of the relevant person is registered
for the purposes of this subsection
at an Australian
consulate, and the registration is the result of an application
made within 25 years of the person’s birth to register the person’s
name for
those purposes; and
(b) a person, being a
parent of the relevant person at the time of the birth of the
relevant person:
(i) held at that time Australian citizenship,
acquired otherwise than by
descent; or
(ii) held:
(A) at that time Australian citizenship, acquired by descent;
and
(B) at any time before the registration of the name of the relevant
person, including a time before the birth of the relevant
person,
was present in Australia,
otherwise than as a prohibited
immigrant, as a prohibited non-citizen, as an illegal entrant, as
an unlawful non-citizen, or in contravention of a law of a
prescribed Territory, as deemed by Parliament, for a period
of, or for
periods amounting in the aggregate to, not less than
two years.
(6) A
person, not holding Australian citizenship, who:
(a) has been ordinarily
resident in Australia for a continuous period of five years
or more while a permanent resident; and
(b) possesses a basic knowledge of
the English language;
shall hold Australian citizenship.
(7)
Any person holding Australian citizenship or eligible to apply for Australian
citizenship immediately before the commencement of this section
shall, under this
section, continue to hold Australian citizenship
or be eligible to apply for Australian
citizenship after its
commencement.
(8) Australian citizenship shall possess as a characteristic
a non-derogable right of
abode.
(9) Australian citizenship
shall possess as a characteristic a non-derogable right to vote
for
the Senate and for the House of Representatives of the Parliament of the
Commonwealth, subject only to the requirement that the citizenship holder be of
the
age of 18 years or older on the day the election is to
occur.
(10) The foregoing rights of Australian citizenship are not to be
interpreted as exhaustive
of or in derogation of other citizenship
rights elsewhere established in this
Constitution; all such rights
are to be construed without prejudice as to residency
status in
either State or Territory.
(11) Parliament may make laws expanding, but not
diminishing, the class of persons
holding Australian
citizenship.
(12) Parliament may make laws concerning the ineligibility of
persons to obtain
Australian citizenship, where such laws concern
acts committed by those to be
deemed ineligible and the acts
concerned are inimical to the interests of the
Australian
community.
[1] Re MIMIA; Ex parte Ame
[2005] HCA 36 (Unreported, Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan
and Heydon JJ, 4 August 2005).
* Paul Martin has recently completed his
undergraduate studies in law and political science, having spent a semester at
the University
of Virginia School of Law. He has recently returned from
Washington, DC, where he was interning with the Rethinking Bretton Woods
project
at the Center of Concern: <www.coc.org/rbw>. The author would like to
thank Professor Kim Rubenstein for enabling him to contribute research
assistance towards the applicant[2]s case;
errors or omissions remain, of course, the author’s own. This paper states
the law as of 30 June 2006.
2 [2005] HCA 36 (Unreported, Gleeson
CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ, 4 August
2005).
[3] Namely, the Papua
New Guinea Independence Act 1975 (Cth), the Papua New Guinea Independence
(Australian Citizenship) Regulations 1975 (Cth) and the Papua New Guinean
Constitution. For more on the history of the Australian administration of
both Papua and New Guinea, see J Griffin, H Nelson and S Firth, Papua
New Guinea; A Political History (Heinemann Education Australia Pty
Ltd,1979).
[4] Re MIMIA; Ex
parte Ame [2005] HCA 36 (Unreported, Gleeson CJ, McHugh, Gummow, Kirby,
Hayne, Callinan and Heydon JJ, 4 August 2005) [22], [69]-[71],
[73]-[74].
[5] Ibid [34]-[37],
[118].
[6] See Transcript of
Proceedings, Re MIMIA; Ex parte Ame (High Court of Australia, 3
March 2005).
[7] Re MIMIA; Ex
parte Ame [2005] HCA 36 (Unreported, Gleeson CJ, McHugh, Gummow, Kirby,
Hayne, Callinan and Heydon JJ, 4 August 2005) [4].
[8]
Ibid.
[9] Ibid
[44].
[10]
Ibid.
[11] Papua New Guinea
Independence (Australian Citizenship) Regulations 1975 (Cth) reg 4
states:
‘A person who-
(a) immediately before Independence Day, was
an Australian citizen within the meaning of the Act; and
(b) on Independence
Day becomes a citizen of the Independent State of Papua New Guinea by virtue of
the provisions of the Constitution of the Independent State of Papua New
Guinea,
ceases on that day to be an Australian citizen’.
[12] Constitution of the
Independent State of Papua New Guinea s 65. In line with s 65(1), two of the
applicant’s grand-parents were ‘born in the country’. The
applicant failed to renounce his Australian
citizenship in accordance with s
65(5).
[13] Re MIMIA; Ex
parte Ame [2005] HCA 36 (Unreported, Gleeson CJ, McHugh, Gummow, Kirby,
Hayne, Callinan and Heydon JJ, 4 August 2005) [19].
[14] Ibid
[22].
[15] Ibid [4],
[17].
[16] Ibid
[22].
[17] In accordance with s
5 of the Migration Act 1958 (Cth). At the relevant time, the Migration
Act 1958 (Cth) sourced its definition of ‘Australia’ from s 17
of the Acts Interpretation Act 1901 (Cth), which provided that the term
meant ‘the Commonwealth of Australia and, when used in a geographical
sense, includes the
Territory of Christmas Island and the Territory of Cocos
(Keeling) Islands, but does not include any other external Territory’.
That is to say, the Act purported to excise certain areas of the country,
including Papua, for migration purposes. Notably, s 5(1)
of the Australian
Citizenship Act 1948 (Cth) contained no such limitation.
[18] Which specified that:
‘[t]he Governor-General may make regulations making provision for or in
relation to matters arising
out of or connected with the attainment of the
independence of Papua New Guinea, including regulations making modifications or
adaptations
of any Act’: Papua New Guinea Independence Act 1975
(Cth) s 6(1).
[19] Re MIMIA;
Ex parte Ame [2005] HCA 36 (Unreported, Gleeson CJ, McHugh, Gummow, Kirby,
Hayne, Callinan and Heydon JJ, 4 August 2005) [80]-[81]. This contention was
made in accordance
with a long line of related authority: see, eg, Potter v
Minahan [1908] HCA 63; (1908) 7 CLR 277, 304 (O’Connor J); Baker v Campbell
(1983) 153 CLR 52; Re Bolton; Ex parte Beane [1987] HCA 12; (1987) 162 CLR 514;
Bropho v Western Australia [1990] HCA 24; (1990) 171 CLR 1; Coco v The Queen
[1994] HCA 15; (1994) 179 CLR 427.
[20]
Re MIMIA; Ex parte Ame [2005] HCA 36 (Unreported, Gleeson CJ, McHugh,
Gummow, Kirby, Hayne, Callinan and Heydon JJ, 4 August 2005) [26]. Under s 51 of
the Australian Constitution, Commonwealth Parliament has
‘power, subject to the Constitution, to make laws for the peace, order,
and good government of the Commonwealth’ with respect to a number of
matters, relevantly
including ‘naturalization and aliens’ (s
51(xix)), ‘immigration and emigration’ (s 51(xxvii)),
‘external affairs’ (s 51(xxix)) and ‘relations of the
Commonwealth with the islands of the Pacific’ (s 51(xxx)). It also retains
power, under s 122, to ‘make laws for the government of any territory ...
placed by the Queen under the authority of and accepted by the
Commonwealth’.
This last power has often been described as unfettered or
plenary: see, eg, Re MIMIA; Ex parte Ame [2005] HCA 36 (Unreported,
Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ, 4 August 2005)
[98].
[21] Re MIMIA; Ex parte
Ame [2005] HCA 36 (Unreported, Gleeson CJ, McHugh, Gummow, Kirby, Hayne,
Callinan and Heydon JJ, 4 August 2005)
[46].
[22] Ibid [41],
[132].
[23] Ibid
[1].
[24] Ibid [42].
[25] Ibid [22].
[26] In the majority’s
words, the matter ‘concerned an instrument of nationhood and government,
dealing with a practical
issue affecting the membership of a new Independent
State’: ibid [21].
[27]
Ibid [22], [32].
[28] Ibid
[69]-[77], [88].
[29] The Hon
Arthur Calwell, Minister for Immigration, cited in ibid
[69].
[30] Re MIMIA; Ex parte
Ame [2005] HCA 36 (Unreported, Gleeson CJ, McHugh, Gummow, Kirby, Hayne,
Callinan and Heydon JJ, 4 August 2005)
[78].
[31] Ibid
[25].
[32] Ibid [83].
[33] Ibid [84].
[34] That is to say, there was
‘a strong desire ... to provide a local or indigenous foundation for
[Papua New Guinea’s]
new constitutional law ... [and] avoid notions of a
“grant of independence”’. The somewhat
‘elliptical’
operation of s 6 and reg 4 was a (valid) means by which
such a policy could be effected: ibid [82], [85].
[35] Ibid [89].
[36] Re MIMIA; Ex parte
Ame [2005] HCA 36 (Unreported, Gleeson CJ, McHugh, Gummow, Kirby, Hayne,
Callinan and Heydon JJ, 4 August 2005)
[80]-[81].
[37] Ibid [28]-[29],
[37].
[38] Ibid [34].
[39] Ibid [37]-[38].
[40] Ibid [104]-[105],
[116]-[117].
[41] Indeed his
Honour commented that it did so from his birth: ibid [119].
[42] Ibid [118].
[43] ‘Citizenship’
in this context means membership of the Australian community as much as a formal
legal status: see Singh v The Commonwealth [2004] HCA 43; (2004) 209 ALR 355; Shaw v
Minister for Immigration & Multicultural Affairs [2003] HCA 72; (2003) 218 CLR 28;
Re Minister for Immigration & Multicultural Affairs; Ex parte Te
[2002] HCA 48; (2002) 212 CLR 162; Re Patterson; Ex parte Taylor [2001] HCA 51; (2001) 207 CLR 391;
Nolan v Minister for Immigration & Ethnic Affairs [1988] HCA 45; (1988) 165 CLR
178.
[44] Air Caledonie
International v The Commonwealth (1988) 165 CLR 462. The Full Bench there
noted that, ‘[t]he right of the Australian citizen to enter the country is
not qualified by any law imposing
a need to obtain a licence or
“clearance” from the Executive’: at
469.
[45] See Re MIMIA; Ex
parte Ame [2005] HCA 36 (Unreported, Gleeson CJ, McHugh, Gummow, Kirby,
Hayne, Callinan and Heydon JJ, 4 August 2005) [42], [21]-[22], [32], [69]-[77],
[88], and accompanying
text. Note that deportation is a separate issue from
extradition; the High Court has ruled that Australian citizenship does not
carry a specific protection against extradition, the lawfulness of such an
action being a matter at any rate unrelated to legal status;
see DJL v
Central Authority [2000] HCA 17; (2000) 201 CLR 226, 278-9; Barton v The
Commonwealth [1974] HCA 20; (1974) 131 CLR 477,
482.
[46] See Re MIMIA; Ex
parte Ame [2005] HCA 36 (Unreported, Gleeson CJ, McHugh, Gummow, Kirby,
Hayne, Callinan and Heydon JJ, 4 August 2005)[21]-[22],
[32].
[47] See Re MIMIA; Ex
parte Ame [2005] HCA 36 (Unreported, Gleeson CJ, McHugh, Gummow, Kirby,
Hayne, Callinan and Heydon JJ, 4 August 2005) [80]-[81].. It is unclear how such
a power would
interact with related constitutional freedoms such as the rights
of interstate movement and of access to the seat of government,
both founded in
s 92 of the Constitution: see R v Smithers; Ex parte Benson [1912] HCA 96; (1912)
16 CLR 99, 108 (Griffith CJ), 109-110 (Barton
J).
[48] See Transcript of
Proceedings, Re MIMIA; Ex parte Ame (High Court of Australia, Ms
Rubenstein, 3 March 2005).
[49]
See Re MIMIA; Ex parte Ame [2005] HCA 36 (Unreported, Gleeson CJ,
McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ, 4 August 2005)
.[104]-[105], [116]-[117].
[50]
Ibid [36].
[51] Ibid
[34]-[35], [37], [118].
[52]
Indeed, much of the Court’s analysis seemed to proceed from this
position: see, eg, ibid [17]-[19], [30], [32], [95]-[96],
[101]. Justice Kirby,
in particular, was careful throughout his judgment to test his propositions for
their effect on the broader
swathe of the Australian citizenry: further to the
relevant references above, see ibid [42]-[43], [81], [106], [117]-[118].
None of this implies, however, the invalidity of any of the foregoing
implications. See,
moreover Editorial ‘Australia Must Renounce Official
Policies of Suffering’, below n 174 and Minister for Immigration v
Roberts [1993] FCA 80; (1993) 41 FCR 82, 86 (Einfield J), cited in Rubenstein, below n 94,
2.
[53] What follows is necessarily
an abridged and arguably oversimplified version of a chronology for which there
exists a voluminous
outpouring of literature. For a more detailed and nuanced
treatment of the topic, see the texts referred to
below.
[54] D Heater, A Brief
History of Citizenship (Edinburgh University Press, 2004)
6.
[55] Ibid 21-2,
24-5.
[56] Ibid
26-8.
[57] Ibid
28-9.
[58] Ibid
31.
[59] See ibid
33-7.
[60] Singh v The
Commonwealth [2004] HCA 43; (2004) 209 ALR 355, 376 (McHugh
J).
[61] Heater, above n 54, 58.
[62] Particularly influential
in this regard was Thomas Hobbes: D Runciman, ‘The Concept of the State:
The Sovereignty of a Fiction’
in Q Skinner and B Stråth (eds),
States & Citizens (Cambridge University Press, 2003) 28,
29-30.
[63] See J-J Rousseau,
The Social Contract (Yale University Press,
2002).
[64] See R Nisbet,
‘Citizenship: Two Traditions’ in B Turner and P Hamilton (eds), I
Citizenship: Critical Concepts (Routledge, 1994) 7,
11.
[65] See
ibid.
[66] D Heater, What is
Citizenship? (Polity Press, 1999)
51.
[67] In this regard, figures
such as Robespierre and the advent of the Great Terror are illustrative: see C
Tilly, ‘The Emergence
of Citizenship in France and Elsewhere’ in C
Tilly (ed), Citizenship, Identity and Social Theory (Press Syndicate of
the University of Cambridge, 1996)
223.
[68] In particular, the
authoritarian regimes of Hitler and Mussolini: ibid 233.
[69] See J Locke, Two
Treatises of Government (Cambridge University
Press,1998).
[70] See M Somers,
‘Romancing the Market, Reviling the State: Historicizing Liberalism,
Privatization, and the Competing Claims
to Civil Society’ in C Crouch, K
Eder and D Tambini (eds), Citizenship, Markets and the State (Oxford
University Press, 2001) 24,
30-1.
[71] Heater, above n 54,
74-6.
[72] That is,
‘constitutionalism’ not in the sense of limited government per se,
but in the sense of circumscription of those
limits in a written document; H
Belz, A Living Constitution or Fundamental Law? (Rowman &
Littlefield,1998) 2.
[73] V C
Jackson, ‘Citizenship and Federalism’ in T A Aleinkoff and s
Klusmeyer (eds), Citizenship Today: Global Perspectives and Practices
(Carnegie Endowment for International Peace, 2001) 127,
129.
[74] Tilly, above n 67,
228.
[75] See Bill of Rights
Act 1689, 1 Wm & M; B P Dauenhauer, Citizenship in a Fragile
World (Rowman & Littlefield, 1996)
21.
[76] Heater, above n 66,
5-6; see United States Constitution amends
I-X.
[77] Dauenhauer, above n
75, 21; Bill of Rights Act 1689, 1 Wm & M; see United
States Constitution amends
I-X.
[78] See Heater,
above n 66, 5-6.
[79]
Theoretically distinct in as far as the monarch retained her/his position as
the ultimate source of sovereignty, in contradistinction
to (popular) republican
government.
[80] See, eg,
Bill of Rights Act 1689, 1 Wm & M, Habeas Corpus Act 1679, 20
Car 2; cf United States Constitution amends I-X.
[81] Heater, above n 54,
89.
[82] Germany being a
particularly good example of this: ibid 90-2.
[83] B Turner and P Hamilton,
‘General Commentary’ in B Turner and P Hamilton (eds), I
Citizenship: Critical Concepts (Routledge, 1994) i,
ii.
[84] Ibid
v.
[85] A W Marx, ‘The
Dynamics of Racial Identity and Social Movements’ in C Tilly (ed),
Citizenship, Identity and Social Theory (Press Syndicate of the
University of Cambridge, 1996) 159,
163.
[86] See Heater, above n
54, 115-120.
[87] Extension in
the sense both of applying to groups previously excluded from voting, such as
the landless, and women, and also as
regards members of nations transformed from
authoritarian to democratic regimes: ibid 117, 120,
125-9.
[88] Y Zilbershats,
The Human Right to Citizenship (Transnational Publishers, 2002) 43-4, 47,
51; Heater, above n 66,
95-105.
[89] See, eg, T H
Marshall, Class, Citizenship and Social Development (Anchor,
1965).
[90] Heater, above n 66,
84.
[91] See ibid 102-5.
[92] Owing to the rise of human
rights and related notions based on universality, and to the extension of core
aspects of liberal citizenship
such as equality before the law and due process
rights to all people: see, eg, B S Turner, ‘Outline of a Theory of Human
Rights’
in Bryan Turner and Peter Hamilton (eds), II Citizenship:
Critical Concepts (Routledge , 1994) 461; ibid
85.
[93] S Castles and A
Davidson, Citizenship and Migration (Basingstoke, 2000) vii. In this
regard, the limits posed by ‘cultural relativism’ to universal human
rights and the
(relative) legal poverty of (non-citizen) migrants are
particularly relevant: see, eg, Castles and Davidson at vii, 57, 188, 229.
[94] Though not explicitly;
such a power most likely exists through a combination of the power contained in
s 51(xix) of the Constitution and that inherent to the implied nationhood
power developed by the High Court, which gives Commonwealth Parliament power to
legislate
on intrinsically national matters: see Davis v The Commonwealth
[1988] HCA 63; (1988) 166 CLR 79. For further discussion, see K Rubenstein, Australian
Citizenship Law in Context (Lawbook, 2002)
71-5.
[95] G Nadel,
Australia’s Colonial Culture (Harvard University Press, 1957)
41-2.
[96] H Irving, To
Constitute A Nation (Cambridge University Press, 1997)
73.
[97] See ibid
3.
[98] See R Evans et
al, 1901: Our Future’s Past (Macmillan, 1997) 27-8. Many Chinese
came to Australia in the wake of the 1851 gold rushes in Ballarat and Bathurst.
Kanaka labourers
mainly worked in the sugar cane industry from 1863 onwards:
see S Macintyre, A Concise History of Australia (Cambridge
University Press, 1999)
103-5.
[99] See S Alomes and C
Jones, Australian Nationalism (Collins/Angus & Robertson, 1991)
47.
[100] See Irving, above n
96, 25-8, 33-4, 36-8; Evans et al, above n 98,
51-4.
[101] S
Macintyre, A Colonial Liberalism (Oxford, 1991) 5; Macintyre, above n 98,
115; J Rickard, Australia: A Cultural History (Longman, 1988) 84, 91; R
Birrell, A Nation of Our Own (Longman Cheshire, 1995)
84-5.
[102] Macintyre, above n
101, 5, 194; Rickard, above n 101, 84-5, Birrell, above n 101, 42, 44,
48.
[103] See Evans et
al, above n 98, 22-3.
[104]
Citizenship generally having republican and thus anti-monarchical connotations:
see Irving, above n 96,
158.
[105] Ibid 157. Chief
among them were Dr John Quick, The Hon Richard O’Connor, The Hon Isaac
Isaacs and The Right Hon Charles Kingston:
see ibid
158-9.
[106] Ibid
157.
[107] Rubenstein, above n
94, 29.
[108] Ibid.
[109] See Irving, above n
96, 158-9.
[110] This indeed
was the opinion of Mr William Trenwith: see Rubenstein, above n 94, 29.
At common law, people born within the monarch’s dominions became, by
virtue of their birth, British subjects, enjoying the liberties
and protections
discussed above: see above nn 76-81 and accompanying text. Statutory
modification later allowed British subject status
to be obtained by
naturalization. For further discussion, see Singh v The Commonwealth
[2004] HCA 43; (2004) 209 ALR 355 and Rubenstein, above n 94, 48-9.
[111] Rubenstein, above n 94,
29.
[112] See W J Hudson and M
P Sharp, Australian Independence (Melbourne University Press, 1988)
26-8.
[113] The Hon James
Howe, cited in Rubenstein, above n 94,
37.
[114] Rubenstein, above n
94, 36-7.
[115] Among those
comfortable with the concept was Dr John Quick. Delegates opposing this group
included Mr Henry Higgins and Mr Josiah
Symon: see ibid
37.
[116] See ibid
38.
[117] See
Constitution s
51(xix).
[118] See
Constitution s
51(xxvii).
[119] See
Constitution s 51(xxx). This head of power was included out of fear that
the status of some Pacific Islands as British possessions (such as Fiji) might
preclude
Commonwealth Parliament’s ability to enact relevant legislation
under the external affairs power of s 51(xxix): see R D Lumb and K W Ryan,
The Constitution of the Commonwealth of Australia (Butterworths,
3rd ed, 1981) 184; see also J Quick and R Garran, The Annotated
Constitution of the Australian Commonwealth (Legal Books, 1976) 637-8. Also
notable was the power granted to Commonwealth Parliament under s 51(xxvi) to
legislate with respect to ‘the people of any race ... for whom it is
deemed necessary to make special laws’. The purpose
of this power has
generally been held to relate to the ‘influx’ of Kanaka labourers to
the Queensland sugar cane industry:
see n 99 and Lumb and Ryan at
170-1.
[120] It is possible to
draw an association between the project of nation-building and this notion of
‘privilege’: see, eg,
above n 101 and accompanying
text.
[121] It should be
stressed this is not advanced as a threat actually perceived during Federation
— at least as far as it could
be used upon others than those deemed by all
to be undesirables, such as Kanakas and Chinese — only that it existed as
a logical
corollary of the constitutional structure adopted.
[122] See Constitution
ch III.
[123] For an excellent
study on the competing approaches of delegates on either side of this divide
during the Convention Debates, see
J A La Nauze, The Making of the Australian
Constitution (Melbourne University Press, 1972).
[124] The Constitution
refers to the ‘people’ of the respective States in both the Preamble
and s 7, to the ‘people of the Commonwealth’ in s 24 and to
‘subject[s] of the Queen, resident in any State’ in s
117.
[125] See, eg, Birrell,
above n 101, 190-1, 193-4; indeed, the High Court itself was happy to use the
term in an informal or non-technical
manner: see, eg, Ex parte Walsh; In Re
Yates [1925] HCA 53; (1925) 37 CLR 36, 66 (Knox CJ), 103-4 (Isaacs J); R v MacFarlane;
Ex parte O’Flanagan and O’Kelly [1923] HCA 39; (1923) 32 CLR 518, 574 (Higgins
J); see also Re MIMIA; Ex parte Ame [2005] HCA 36 (Unreported, Gleeson
CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ, 4 August 2005)
[22]-[23], [111], [119]. .
[126] While both powers were
used, it was in fact the latter that was emphasized in the nation’s early
years: see Robtelmes v Brenan [1906] HCA 58; (1906) 4 CLR 395 and Potter v
Minahan [1908] HCA 63; (1908) 7 CLR 277; Donohoe v Wong Sau [1925] HCA 6; (1925) 36 CLR 404; Ex
parte Walsh; In Re Yates [1925] HCA 53; (1925) 37 CLR 36; Christie v Ah Sheung
[1906] HCA 41; (1906) 3 CLR 998; Ah Yin v Christie [1907] HCA 25; (1907) 4 CLR 1428; R v Lindbergh;
Ex parte Jong Hing [1905] HCA 36; (1906) 3 CLR 93. See also D Dutton, Citizenship in
Australia: A Guide to Commonwealth Government Records (1999)
59.
[127] See, eg, Potter v
Minahan [1908] HCA 63; (1908) 7 CLR 277; Donohoe v Wong Sau [1925] HCA 6; (1925) 36 CLR 404; Ex
parte Walsh; In Re Yates [1925] HCA 53; (1925) 37 CLR 36; Christie v Ah Sheung
[1906] HCA 41; (1906) 3 CLR 998; Ah Yin v Christie [1907] HCA 25; (1907) 4 CLR 1428; R v Lindbergh;
Ex parte Jong Hing [1905] HCA 36; (1906) 3 CLR
93.
[128] See Dutton, above n
126, 14.
[129] Cunliffe v
The Commonwealth [1994] HCA 44; (1994) 182 CLR 272, 327-8 (Brennan J), 335-6 (Deane J)
would appear to support this position. Notably, the case under discussion does
not appear to
alter this stance: see Re MIMIA; Ex parte Ame [2005] HCA 36
(Unreported, Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ, 4
August 2005) [30],
[117]-[118].
[130] Notably,
indigenous Australians: see Rubenstein, above n 94, 29, 43, 53.
[131] See Shaw v Minister
for Immigration & Multicultural Affairs [2003] HCA 72; (2003) 218 CLR 28, 45, 48, 72,
87; Re Patterson; Ex parte Taylor [2001] HCA 51; (2001) 207 CLR 391, 398, 413, 437, 475,
507, 518; Nolan v Minister for Immigration & Ethnic Affairs [1988] HCA 45; (1988)
165 CLR 178, 186, 195-6. As does the grant of franchise to women in 1902, at a
time when such a feature was generally lacking from most other
electoral
landscapes: see Audrey Oldfield, Australian Women and the Vote (1994) 66.
Andrew Robb AO MP, “Formal Citizenship Test” discussion paper
released (2006) Office of the Parliamentary Secretary to the Minister for
Immigration and Multicultural Affairs
<http://www. minister.immi.gov.au/parlsec/media/media-releases/medrel06/300610.htm>
at 28
October 2006, where it is asserted ‘Australian citizenship is a privilege
not a right’.
[132]
While both powers were used, it was in fact the latter that was emphasized in
the nation’s early years: see Robtelmes v Brenan [1906] HCA 58; (1906) 4 CLR 395
and Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277; Donohoe v Wong Sau [1925] HCA 6; (1925)
36 CLR 404; Ex parte Walsh; In Re Yates [1925] HCA 53; (1925) 37 CLR 36; Christie v
Ah Sheung [1906] HCA 41; (1906) 3 CLR 998; Ah Yin v Christie [1907] HCA 25; (1907) 4 CLR 1428; R
v Lindbergh; Ex parte Jong Hing [1905] HCA 36; (1906) 3 CLR 93. See also D Dutton,
Citizenship in Australia: A Guide to Commonwealth Government Records
(1999) 59. See, eg, Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277; Donohoe v Wong
Sau [1925] HCA 6; (1925) 36 CLR 404; Ex parte Walsh; In Re Yates [1925] HCA 53; (1925) 37 CLR 36;
Christie v Ah Sheung [1906] HCA 41; (1906) 3 CLR 998; Ah Yin v Christie [1907] HCA 25; (1907) 4
CLR 1428; R v Lindbergh; Ex parte Jong Hing [1905] HCA 36; (1906) 3 CLR
93.
[133] See Re MIMIA; Ex
parte Ame [2005] HCA 36 (Unreported, Gleeson CJ, McHugh, Gummow, Kirby,
Hayne, Callinan and Heydon JJ, 4 August 2005) [22]-[23], [111],
[119].
[134] See Rubenstein,
above n 94, 79-80, 29.
[135]
Ibid 80.
[136] Ibid.
[137] Ibid
177-256.
[138] See, eg,
Commonwealth Electoral Act 1918 (Cth) s
93(1)(b)(i).
[139]
Australian Passports Act 2005 (Cth) s
7(1).
[140] See, eg,
Migration Act 1958 (Cth) ss 4, 13(1), 14(1), 29(1), 189, 196, 198.
Citizenship is also relevant vis-à-vis employment in the public service,
where it may be used as a discriminating factor
in the hiring of employees:
see Public Service Act 1999 (Cth) ss 22(6), (8), and Rubenstein, above n
94, 225-7. The more relevant status as regards rights and responsibilities under
Australian law is
that of permanent resident: see Rubenstein at
254.
[141] Commonwealth
Electoral Act 1918 (Cth) s 93(1)(b)(ii). The recent (mistaken) incarceration
and deportation of several Australian citizens (see R Skelton, ‘How We
Wrongly Locked Away
60 People’, The Sunday Age (Melbourne), 15
January 2006, 1) arguably provides further evidence as to the limits of
citizenship in the Australian
context.
[142] A-M Jordens,
Alien to Citizen (Allen & Unwin in association with the Australian
Archives, 1997) 173-4.
[143] B
Murphy, The Other Australia (Cambridtge University Press, 1993)
146.
[144] See Jordens,
above n 124, 171-4, 180-5,
188.
[145] See Murphy,
above n 143, 146, 160,
162.
[146] See, eg, ibid
145-8.
[147] See Jordens,
above n 142, 177-8, 193,
207-8.
[148] Rubenstein, above
n 94, 86.
[149] C Dauvergne,
‘Citizenship, Migration Laws and Women: Gendering Permanent Residency
Statistics’ [2000] MelbULawRw 11; (2000) 24 Melbourne University Law Review 280, 286-9.
Compare also the combined 105 pages of the Australian Citizenship Act
1948 (Cth) and the Australian Citizenship Regulations 1960 (Cth) with
the 2,685 pages collectively occupied by the Migration Act 1958 (Cth) and
the Migration Regulations 1994
(Cth).
[150] Rubenstein, above
n 94, 70 fn 30.
[151] On
account of the repeal of s 17 of the Australian Citizenship Act 1948
(Cth), by the Australian Citizenship Legislation Amendment Act 2002
(Cth). This legislation remedied the previously-existing inequality which
allowed naturalized Australian citizens to retain their
original citizenship,
while preventing natural-born Australian citizens from taking up additional
citizenships for which they were
eligible.
[152] Rubenstein,
above n 94, 26.
[153] See
Anti-Terrorism Act (No. 2) 2005 (Cth) sch 7, which expands the definition of
sedition and arguably impinges upon freedom of speech. See also Law Council of
Australia,
‘Summary Comment on the Anti-Terrorism Bill (No. 2) 2005’
(Press Release, 14 November
2005).
[154] Rubenstein, above
n 94, 62.
[155] See Re
MIMIA; Ex parte Ame [2005] HCA 36 (Unreported, Gleeson CJ, McHugh, Gummow,
Kirby, Hayne, Callinan and Heydon JJ, 4 August 2005) [22], [30], [89], [111],
[117].
[156] See Air
Caledonie International v The Commonwealth (1988) 165 CLR 462. The Full
Bench there noted that, ‘[t]he right of the Australian citizen to enter
the country is not qualified by any law imposing
a need to obtain a licence or
“clearance” from the Executive’: at 469; Re MIMIA; Ex parte
Ame [2005] HCA 36 (Unreported, Gleeson CJ, McHugh, Gummow, Kirby, Hayne,
Callinan and Heydon JJ, 4 August 2005) [42], [21]-[22], [32], [69]-[77], [88],
and accompanying
text. Note that deportation is a separate issue from
extradition; the High Court has ruled that Australian citizenship does not
carry a specific protection against extradition, the lawfulness of such an
action being a matter at any rate unrelated to legal status;
see DJL v
Central Authority [2000] HCA 17; (2000) 201 CLR 226, 278-9; Barton v The
Commonwealth [1974] HCA 20; (1974) 131 CLR 477,
482.
[157] See, eg, Chu
Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs
(1992) 176 CLR 1; Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562; MIMIA v
Al-Khafaji [2004] HCA 37; (2004) 219 CLR 562; R v Bernasconi [1915] HCA 13; (1915) 19 CLR 629;
Teori Tau v The Commonwealth [1969] HCA 62; (1969) 119 CLR 564; Lamshed v Lake
[1958] HCA 14; (1958) 99 CLR 132 and Singh v The Commonwealth [2004] HCA 43; (2004) 209 ALR 355;
Shaw v Minister for Immigration & Multicultural Affairs [2003] HCA 72; (2003) 218
CLR 28; Re Minister for Immigration & Multicultural Affairs; Ex parte
Te [2002] HCA 48; (2002) 212 CLR 162; Re Patterson; Ex parte Taylor [2001] HCA 51; (2001) 207 CLR
391; Nolan v Minister for Immigration & Ethnic Affairs [1988] HCA 45; (1988) 165 CLR
178; Cunliffe v The Commonwealth [1994] HCA 44; (1994) 182 CLR 272, 327-8 (Brennan J),
335-6 (Deane J) would appear to support this position. Notably, the case under
discussion does not appear to
alter this stance: see Re MIMIA; Ex parte
Ame [2005] HCA 36 (Unreported, Gleeson CJ, McHugh, Gummow, Kirby, Hayne,
Callinan and Heydon JJ, 4 August 2005) [30],
[117]-[118].
[158] Rubenstein,
above n 94, 255.
[159] See
Rubenstein, above n 94, 177-256; Commonwealth Electoral Act 1918 (Cth) s
93(1)(b)(i); Australian Passports Act 2005 (Cth) s 7(1); Migration Act
1958 (Cth) ss 4, 13(1), 14(1), 29(1), 189, 196, 198. Citizenship is also
relevant vis-à-vis employment in the public service, where it may be used
as a discriminating factor
in the hiring of employees: see Public Service Act
1999 (Cth) ss 22(6), (8), and Rubenstein, above n 94, 225-7. The more
relevant status as regards rights and responsibilities under Australian law is
that of permanent resident: see Rubenstein at 254; Commonwealth Electoral Act
1918 (Cth) s 93(1)(b)(ii). The recent (mistaken) incarceration and
deportation of several Australian citizens (see R Skelton, ‘How We Wrongly
Locked Away
60 People’, The Sunday Age (Melbourne), 15 January
2006, 1) arguably provides further evidence as to the limits of citizenship in
the Australian context; Jordens,
above n
142.
[160] See Re MIMIA; Ex
parte Ame [2005] HCA 36 (Unreported, Gleeson CJ, McHugh, Gummow, Kirby,
Hayne, Callinan and Heydon JJ, 4 August 2005) [78]; Shaw v Minister for
Immigration & Multicultural Affairs [2003] HCA 72; (2003) 218 CLR 28, 35, 87,
however.
[161] See Shaw v
Minister for Immigration & Multicultural Affairs [2003] HCA 72; (2003) 218 CLR 28;
Re Patterson; Ex parte Taylor [2001] HCA 51; (2001) 207 CLR 391; Nolan v Minister for
Immigration & Ethnic Affairs [1988] HCA 45; (1988) 165 CLR
178.
[162] Shaw v Minister
for Immigration & Multicultural Affairs [2003] HCA 72; (2003) 218 CLR
28.
[163] The
Constitution refers, in the Preamble, to the ‘people’ of the
respective States agreeing to ‘unite in one indissoluble Federal
Commonwealth’. This, together with references to the ‘people of the
State’ and the ‘people of the Commonwealth’
in ss 7 and 24
respectively — which collectively provide for a system of representative
democracy by establishing the methods for electing
the Senate and the House of
Representatives respectively — as well as reference to the method for
qualification of such electors
(ss 8 and 30), has been held by some to provide a
broad constitutional guarantee of franchise, and as such, a broad guarantee of
membership of
the Australian body politic, unable to be deprived by the
legislature, at least in the absence of extraordinary circumstances. The
concept
is not well developed in law, though there is arguably some authority for the
proposition: see Cunliffe v The Commonwealth [1994] HCA 44; (1994) 182 CLR 272, 327-8
(Brennan J), 335-6 (Deane J); Re Patterson; Ex parte Taylor [2001] HCA 51; (2001) 207
CLR 391, 411 (Gaudron J); Re MIMIA; Ex parte Ame [2005] HCA 36
(Unreported, Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ, 4
August 2005) [30],
[117]-[118].
[164] [2004] HCA 43; (2004) 209
ALR 355.
[165] Shaw v
Minister for Immigration & Multicultural Affairs [2003] HCA 72; (2003) 218 CLR 28, 35,
87.
[166] Singh v The
Commonwealth [2004] HCA 43; (2004) 209 ALR 355, 367,
414.
[167] Re MIMIA; Ex
parte Ame [2005] HCA 36 (Unreported, Gleeson CJ, McHugh, Gummow, Kirby,
Hayne, Callinan and Heydon JJ, 4 August 2005) [37]-[38],
[116]-[117].
[168] See ibid
[116].
[169] P Prince,
‘Mate! Citizens, Aliens and ‘Real Australians’ — The
High Court and the Case of Amos Ame’
(Research Brief , Parliamentary
Library of Australia, 17 October 2005) 11.
[170] See, eg, Singh v The
Commonwealth [2004] HCA 43; (2004) 209 ALR 355, 357 (Gleeson CJ); Pochi v Macphee
[1982] HCA 60; (1982) 151 CLR 101, 109 (Gibbs
CJ).
[171] See, eg, Shaw v
Minister for Immigration & Multicultural Affairs [2003] HCA 72; (2003) 218 CLR 28, 87
(Heydon J); Singh v The Commonwealth [2004] HCA 43; (2004) 209 ALR 355, 413-5 (Gummow,
Hayne and Heydon JJ). Indeed, the evolution of the aliens’ power over the
last decade suggests just
this.
[172] Re MIMIA; Ex
parte Ame [2005] HCA 36 (Unreported, Gleeson CJ, McHugh, Gummow, Kirby,
Hayne, Callinan and Heydon JJ, 4 August 2005)
[117].
[173] See Re MIMIA;
Ex parte Ame [2005] HCA 36 (Unreported, Gleeson CJ, McHugh, Gummow, Kirby,
Hayne, Callinan and Heydon JJ, 4 August 2005) [41],
[132]..
[174] See
Editorial, ‘Australia Must Renounce Official Policies of
Suffering’, The Age (Melbourne), 10 January 2006, 10.
[175] Minister for
Immigration v Roberts [1993] FCA 80; (1993) 41 FCR 82, 86 (Einfield J), cited in
Rubenstein, above n 94,
2.
[176] See The Hon
John Howard MP, Joint Press Conference with Attorney-General (2003)
Office of the Prime Minister
<http://www.pm . gov.au/news/interviews/Interview1553.html>
at 10 December 2005; see also Ray Martin, Interview with The Hon Peter Costello
MP (Melbourne, 23 August 2005)
<http://www.treasurer.gov. au/tsr/content/transcripts/2005/124.asp>
at 26 November 2005. The government
has, for the moment, apparently shelved such plans: see J Kerr,
‘Convicted Terrorists Will Keep Citizenship’, Sydney Morning
Herald (Sydney), 10 November 2005,
4.
[177] See, eg, Criminal
Code Act 1995 (Cth) s 101.4, which creates an offence of possessing a
‘thing’, where that thing ‘is connected with preparation
for,
the engagement of a person in, or assistance in a terrorist
act’.
[178] Singh v
The Commonwealth [2004] HCA 43; (2004) 209 ALR 355, 368 (McHugh
J).
[179] Indeed, the present
case would appear to support this argument.
[180] Even admitting the
influence of Lockean thought on the development of common law freedoms and
liberties, it is possible to argue
the above given the historical context of
absolute, unabridged dominion underpinning the theoretical relationship between
monarch
and subject. While practically speaking, such a connection no longer
abides, the self-same structure endures; hence, it may be asserted
that while
the balance of rights and obligations between monarch and subject has altered,
their sum total subsists at the same (greatly
expansive) level as before: see
discussion above at Part III.B and the texts there referred
to.
[181] The freedoms
explicitly provided by the Constitution are contained in ss 41, 51(xxxi),
80, 116 and 117. Largely, though not in all instances, these have been construed
so as to provide hollow protection, such as s 41’s guarantee that
‘[n]o adult person who has or acquires a right to vote at elections for
the more numerous House of the
Parliament of a State shall, while the right
continues, be prevented by any law of the Commonwealth from voting at elections
for
either House of the Parliament of the Commonwealth’, which has been
read to guarantee only those voting rights that existed
prior to Federation,
before Commonwealth Parliament provided for uniform federal franchise in 1902:
see R v Pearson; Ex parte Sipka [1983] HCA 6; (1983) 152 CLR 254. Additionally, the
High Court has ruled that the Constitution contains a number of implied
constitutional freedoms, such as a freedom of political communication
(Australian Capital Television v The Commonwealth [1992] HCA 45; (1992) 177 CLR 106)),
and freedoms of interstate movement and of access to the seat of government
(R v Smithers; Ex parte Benson [1912] HCA 96; (1912) 16 CLR 99)). Individual judges have
further discerned additional freedoms, most notably Justice Murphy: see, eg,
McGraw-Hinds (Aust) Pty Ltd v Smith [1979] HCA 19; (1979) 144 CLR 633, 670; Taylor v
Taylor [1979] HCA 38; (1979) 143 CLR 1, 20; Sillery v The Queen [1981] HCA 34; (1981) 180 CLR 353,
362. For further discussion, see P H Lane, Lane’s Commentary on the
Australian Constitution (Law Book Co, 2nd ed,
1997).
[182] See
discussion above Part
IV.
[183] See
discussion above Part IV.B and Rubenstein, above n 94,
24-45.
[184] See, eg,
‘Mob Violence Envelops Cronulla’, Sydney Morning Herald
(Sydney), 11 December 2005, at
<http://www.smh.com.au/news/national/mob-violence-envelops-cronulla/ 2005/12/11/1134235936223.html>
.
[185]
While never formally enunciated as such, the White Australia Policy was a
discriminatory immigration policy favouring white, generally
Anglo-Celtic
immigrants, in operation for the first 50 or so years of the nation’s
life. It was associated with the infamous
dictation test, whereby customs
officers could require entrants to transcribe fifty words in a European language
of the officer’s
choosing: see H I London, Non-White Immigration and
the ‘White Australia’ Policy (Sydney University Press, 1970)
3-25.
[186] The prevailing
immigration policy throughout the 1950s and the early part of the 1960s,
assimilation’s emphasis was on discouraging
ethnic expression, instead
stressing cultural homogeneity: see Jordens, above n 144,
147-52.
[187] Following
assimilation, integration was official immigration policy. While underscoring
absorption into the mainstream of Australian
community, it left greater space
for cultural pluralism. It operated from the mid-1960s until the mid-1970s: see
ibid 153-4.
[188] From the
mid-1970s onwards, multiculturalism has been the operative government
immigration policy. Its essence is celebrating cultural
diversity while at the
same time emphasizing national unity: see ibid 227-38. See also Department of
Immigration and Multicultural
and Indigenous Affairs, Fact Sheet No 6: The
Evolution of Australia’s Multicultural Policy
(2005).
[189] Owing to its
explicit protection under the Constitution: see Constitution s
116.
[190] See Appendix para
(8).
[191] Zilbershats, above
n 88, 4.
[192] See
Constitution ss 7, 24; see also Shaw v Minister for Immigration &
Multicultural Affairs [2003] HCA 72; (2003) 218 CLR 28, 35, 87.
[193] See Appendix para (9). It should be noted the right of franchise contemplated in the Appendix is non-derogable, subject only to the requirement that the citizenship holder be of the age of 18 years or older on the day the election is to occur, contrary to the provisions of s 93(8) of the Commonwealth Electoral Act 1918 (Cth), which prevent those incapable of understanding the nature and significance of enrolment and voting by reason of being of unsound mind, those serving a sentence of three years or longer for an offence against a law of the Commonwealth or of a State or Territory, and those convicted of treason or treachery who have not been pardoned, from voting. The contemplated provision further runs counter to ss 94-95 of the Commonwealth Electoral Act 1918 (Cth), which provide, inter alia, for the ineligibility to vote of those enrolled and those eligible to be enrolled to vote where such persons have resided outside of Australia for more than six years continuously. Although arguably controversial, such a provision is entirely appropriate given the professed inclusive rationale underlying the proposed citizenship regime. It should be noted that the proposed amendment does not prevent the right of franchise being possessed by British subjects on the electoral roll before 26 January 1984, or indeed by other classes deemed worthy of possession by Parliament.
[194] See Rubenstein, above n
94, 29, 43, 53; Shaw v Minister for Immigration & Multicultural
Affairs [2003] HCA 72; (2003) 218 CLR 28, 45, 48, 72, 87; Re Patterson; Ex parte Taylor
[2001] HCA 51; (2001) 207 CLR 391, 398, 413, 437, 475, 507, 518; Nolan v Minister for
Immigration & Ethnic Affairs [1988] HCA 45; (1988) 165 CLR 178, 186, 195-6. As does the
grant of franchise to women in 1902, at a time when such a feature was generally
lacking from most other
electoral landscapes: see Audrey Oldfield, Australian
Women and the Vote (1994) 66. Andrew Robb AO MP, “Formal
Citizenship Test” discussion paper released (2006) Office of the
Parliamentary Secretary to the Minister for Immigration and Multicultural
Affairs
<http://www. minister.immi.gov.au/parlsec/media/media-releases/medrel06/300610.htm>
at 28
October 2006, where it is asserted ‘Australian citizenship is a privilege
not a right’.
[195]
See Re MIMIA; Ex parte Ame [2005] HCA 36 (Unreported, Gleeson CJ,
McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ, 4 August 2005) [41],
[132].
[196] See Shaw v
Minister for Immigration & Multicultural Affairs [2003] HCA 72; (2003) 218 CLR 28, 45,
48, 72, 87; Re Patterson; Ex parte Taylor [2001] HCA 51; (2001) 207 CLR 391, 398, 413,
437, 475, 507, 518; Nolan v Minister for Immigration & Ethnic Affairs
[1988] HCA 45; (1988) 165 CLR 178, 186, 195-6; see also Jordens, above n 142 and
accompanying text.
[197] As
does the grant of franchise to women in 1902, at a time when such a feature was
generally lacking from most other electoral landscapes:
see A Oldfield,
Australian Women and the Vote (Cambridge University Press, 1994)
66.
[198] See, eg, A Robb AO
MP, “Formal Citizenship Test” discussion paper released
(2006) Office of the Parliamentary Secretary to the Minister for Immigration
and Multicultural Affairs
<http://www. minister.immi.gov.au/parlsec/media/media-releases/medrel06/300610.htm>
at 28
October 2006, where it is asserted ‘Australian citizenship is a privilege
not a right’.
[199] See,
eg, Jordens, above n 144; Macintyre, above n 98; P Knightley, Australia: A
Biography of a Nation (Jonathan Cape,
2001).
[200] See, for example,
the recent riots in France: G Kitney, ‘Paris Riots Lay Bare Deeper
Problems’, Australian Financial Review (Sydney), 5 November 2005,
9.
[201] See, eg, n 186 above;
M Baume, ‘Social fabric frays at seam’, Australian Financial
Review (Melbourne), 30 October 2006,
62.
[202] Historically, the
former was favoured in the United Kingdom and throughout the British Empire (see
above n 111), as well as in the
United States and many Latin American countries.
By contrast, the latter was the norm in Prussia, Austria-Hungary and other
European
states, emphasizing patrimonial lineage. For further discussion, see
above Part III.C and Heater, above n
54.
[203] See Citizenship
Act 1948 (Cth) ss 10, 10B, 10C, 11.
[204] Citizenship Act 1948
(Cth) ss 13, 15. A Bill before Parliament would, if passed, amend this
two-year period: see Citizenship Act 1948 (Cth) ss 10(3)-(5),
10B(1A)-(4), 10C, 11, 13(1A)-(17), 14A-14C, 18-23B. Other important criteria
include being ‘of good character’
and possessing an ‘adequate
knowledge of the responsibilities and privileges of Australian
citizenship’: see Citizenship Act 1948 (Cth) ss 13(1)(f), 13(1)(j).
Citizenship does not actually take effect until the certificate of Australian
citizenship has been issued
and a pledge of commitment has been made in the
manner provided by the Act: see Citizenship Act 1948 (Cth) s 15(1)(a).
Citizenship may also be acquired by adoption, where a permanent resident, while
in Australia, is adopted under State
or Territory law by an Australian citizen
or jointly by two persons, at least one of whom is an Australian citizen:
Citizenship Act 1948 (Cth) s 10A. Special provisions, here overlooked,
further exist providing for registration as a citizen where the relevant person
would otherwise be stateless, and for conferral of citizenship upon the members
of a territory where that territory is incorporated
into Australia: see
Citizenship Act 1948 (Cth) ss 23D, 33.
[205] That is, the time
period listed in s 10(2)(b) of the Citizenship Act 1948 (Cth) should be
altered from 10 years to five years: see Citizenship Act 1948 (Cth) s
10(2)(b), Appendix paras (3)(b), (6), Citizenship Act 1948 (Cth) ss
10(3)-(5), 10B(1A)-(4), 10C, 11, 13(1A)-(17), 14A-14C, 18-23B. The criteria
governing citizenship by adoption should be similarly
incorporated into the
Constitution: see Appendix paras
(3)-(5).
[206] R Rubio-Marin,
Immigration as a Democratic Challenge: Citizenship and Inclusion in Germany
and the United States (Cambridge University Press,
2000).
[207] Ibid
6.
[208] See, eg, S Castles
and M J Miller, The Age of Migration (Guildford Press, 2nd ed,
1998) 269-74, 281-2.
[209] See Appendix para (6); Citizenship Act 1948 (Cth) s 13(1). A Bill currently before Parliament would lift this two-year period to three years: see Citizenship Bill 2005 (Cth) s 22(1). Amendments to the Bill extending the period to four years were introduced into Parliament on 2 November 2006: see Department of Immigration and Multicultural Affairs, Australian Citizenship Bill amendments tabled in Parliament (2006) Department of Immigration and Multicultural Affairs <http://www.citizenship.gov.au/law-and-policy/legislation/changes200406-announce.htm> at 11 November 2006. Parliament in fact already recognizes the principle advanced by Rubio-Marin in providing for citizenship by birth where the person born in Australia is ordinarily resident in Australia for the first 10 years of her/his life: see Citizenship Act 1948 (Cth) s 10(2).
[210] See Appendix para (6).
Other currently-listed requirements should be omitted so as to eliminate the
inequality currently burdening
citizenship by grant as compared with the other
citizenship forms provided for by the present regime. Provision should be
retained
for Parliament to limit the ability of individuals of insufficient
character to obtain citizenship: see below n 214 and accompanying
text.
[211] See Citizenship
Act 1948 (Cth) ss 10(3)-(5), 10B(1A)-(4), 10C, 11, 13(1A)-(17), 14A-14C,
18-23B.
[212] See Appendix
paras (7), (11), (12).
[213]
For discussion of such a proposal, see P Alston (ed), Towards an
Australian Bill of Rights (Centre for Internationa and Public Law,
Australian National University, 1994).
[214] See Appendix para (10).
As drafted, this provision would protect freedom of movement as established
elsewhere in the Constitution (see Re MIMIA; Ex parte Ame [2005]
HCA 36 (Unreported, Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and
Heydon JJ, 4 August 2005)[21]-[22], [32]), as well as other, similar rights
(see
above n 183), while at the same time adhering to the principle enunciated above
of installing a citizenship only as strong as
is necessary to offset aspects of
the Constitution which impinge on individual liberty. Relatedly, s 116 of
the Constitution should be amended so as to provide that the rights
contained therein apply to holders of Australian citizenship, and s 34(ii) of
the Constitution should be repealed and replaced with text requiring that
potential members hold Australian citizenship.
[215] Its treatment of asylum
seekers and refugees being particularly notorious in this regard.
[216] Department of
Immigration and Multicultural and Indigenous Affairs, Why Australian
Citizenship? (2004) Department of Immigration and Multicultural and
Indigenous Affairs
<http://www.citizenship.gov.au/why.htm>
at 16 January
2006.
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