Question: Question: Does an Australian citizen have a right to enter Australia and under what circumstances, if any, can such a right be limited or removed by an exercise of executive or legislative power?

Entry rights are frequently identified as one of the rights conventionally presumed to stem from the status of citizenship.[1] Still, they are not equally assured across all sovereign nations. Australia, with its long history of Parliamentary control over its borders, is one such nation that falls short in providing this right to its citizens. Although Australian citizens do enjoy some protection from the statutory mechanisms through which Parliament may regulate entry into Australia[2], this essay argues that the current legislative and Constitutional landscape does not provide a positive right for citizens to enter Australia.

Part I outlines the Constitutional and Statutory frameworks within which the executive and legislative powers may exercise control over entry into Australia, and subsequently argues that Parliamentary power in this regard remains virtually unconstrained by any rights-based Constitutional limitations. Part II then evaluates possible avenues to read into the existing Constitutional text a form of Constitutional citizen with an associated entrenched right to entry,  particularly given the landmark judgement of Love v Commonwealth of Australia and Thoms v Commonwealth of Australia (‘Love and Thoms’).[3] This paper concludes with the argument that, although there is potential to identify within the Constitution a positive right to entry into Australia for its citizens that is free from any exercise of Parliamentary power, it is unlikely that any such principles could substantively limit Parliamentary power enough to protect citizens’ rights.

PART I

The Constitutional Framework

In the absence of any entrenched Bill of Rights or other such statutory scheme, rights-based limitations on Parliament’s executive and legislative power are predominantly defined by the High Court with reference to the Australian Constitution. The Constitution, notoriously silent on the subject of rights, is perhaps even more lacking in any clear concept of Australian citizenship and the privileges and protections it affords. Devoid of any overt recognition of citizenship, the Constitution confers upon the Commonwealth Parliament the power to make laws regarding the formal inclusion and exclusion of persons from the Australian community. It does so though the mechanisms of s 51 which allow Parliament to make laws, inta alia, with respect to:

1. ‘Naturalisation and aliens’ [s 51(xix)]; and
2. ‘Immigration and Emigration’ [s 51 (xxvii)].

These powers, read jointly, effectively give the Commonwealth Parliament power over membership in the legal sense (via naturalization) and, to a large extent, in the substantive sense (via determining which aliens may enter and remain the geographical Australian territory). Since McHiugh J’s sole judgement in Hwang[4], wherein his Honour dismissed the claim that Parliament could not ‘declare to the world who are the citizens of Australia’ there has been little scrutiny of the scope of Parliament’s power to legislate with regard to citizenship.[5] Since the second half of the twentieth century, most challenges to the scope of Parliament’s power over inclusion and exclusion have concerned the ambit of the ‘aliens power’.[6] The same challenge has not been posed to the term ‘naturalization’, a concept that has remained relatively stable even in the context of the geopolitical change of the past two decades. Given that Constitutional ambiguities remain unclarified until undergoing scrutiny by the High Court, it remains undetermined whether Parliament’s power over ‘naturalization’ extends to identifying any Constitutional rights that stem from citizenship.  However, Gleeson CJ commentary on s 51 suggests that ‘Parliament ... has the power to create and define the concept of Australian citizenship, to prescribe the conditions on which such citizenship may be acquired and lost, and to link citizenship with the right of abode.”[7]

If Parliament may define citizenship, together with the rights and responsibilities it incurs, it follows that there is no substantive protection of any positive right to entry for Australian citizens. Ascertaining the precise Parliamentary limitations that can be derived from Constitutional analysis has been a controversial task in recent decades, with various High Court cases extrapolating from the Constitution various implied rights, such as the right to freedom of political communication.[8]  Some of these implied rights relate fundamentally to the status of citizenship and the various privileges conferred by such a status, although most Constitutional rights are provided by residency rather than justified by reference to citizenship.[9] Voting rights, for instance, have been constructed by the High Court as rights associated with citizenship that could be inferred from s 7 and s 24 of the Constitution, although Parliament may still limit the franchise provided that there is a ‘substantive reason’ to do so.[10]  However, as there has been no direct challenge to the scope of legislative and executive power in this regard,[11] it is only possible to evaluate the extent of Parliament’s power to regulate the entry of citizens into Australia in light of its existing statutory framework.

The Statutory Framework

Although the Australian Citizenship Act 2007 purports to be the primary head of legislation regarding citizenship, entry into Australia for both citizens and non-citizens is regulated by the joint operation of the Migration Act 1958 and the Australian Passports Act 2007. The former of these provides that citizens, although free from the obligation of obtaining a visa that is imposed upon non-citizens, do not possess an ‘absolute right to re-entry’ into Australia, given that they are required to identify themselves in order to obtain entry pursuant to s 4(3) of the Migration Act.[12] Both citizens and non-citizens alike are oblige to present their identification paper to obtain entry, meaning that they must be in possession of a passport. Yet citizenship does not translate to a positive right to an Australian passport. The Australian Passports Act,[13] may generally create an entitlement for citizens to be issued with an Australian passport, but the provision of the document is subject to Part 2 Division 2 of the Act.[14] The list of circumstances in which the executive may refuse the issuing of a passport are detailed in Division 2 of the Act, and allows space for considerable discretionary decision-making by the Minister. For instance, s15 provides that the Minister may refuse a passport to a person who has had two or more passports lost or stolen in the 5 years preceding, giving the executive a power to deny entry that has no direct bearing on a person’s ‘character’ as a citizen. In addition, s 22 creates a general executive power to revoke a citizen’s passport. Although s 22(2) provides numerous situations where the executive may invoke this power, the list is indicative rather than exhaustive, and the scope of executive power to revoke passports under s 22 appears virtually discretionary. Given that a passport is requisite to entry into Australia, even for citizens, it follows that there is no positive right to entry into Australia placing an explicit limitation on the legislature or executive.

In this Constitutional context, wherein Parliament may legislate liberally with respect to not only citizenship but also entry into Australia, the lack of an entrenched right to entry and abode places Australian citizens at risk of exclusion from Australian soil. Even if the Parliament were to pass legislation protecting a citizen’s right to entry, perhaps through the Australian Citizenship Act, the lack of entrenchment of Parliamentary legislature means such law would not support a consistent and enforceable legal right to entry. Furthermore, there is limited scope to identify an implied right for citizen entry derived from existing Constitutional citizenship rights without procedurally arduous Constitutional amendment through referendum. The growth of overseas electoral votes and participation in referenda[15] suggest that the principles of government ‘by the people’ ( mandated by ss 7 and 24)[16] are not necessarily suggestive of a positive right to entry. With the development of overseas postal votes, facilitated by technology such as online enrolment, participation in democratic procedures no longer require physical presence in Australia. Although it is arguable that overseas voting procedures for Australians living abroad are overly limited in that Australians are required to express an intention to return within six years of living in order to maintain their franchise[17], the possibility for citizens to participate from afar likely suffices to disprove an implied right to entry associated with democratic principles.

Part II

Background to Constitutional Citizenship

There may be scope to identify an implied Constitutional right to entry that limits the scope of Parliamentary power to deny citizens entry. Given the scarcity of references to citizenship in the Constitutional text itself, it is likely that such a right would derive not from the statutory concept of Australian citizenship, but a more ideological construction of the term that would limit Parliament’s ability to legislate regarding ‘naturalization’. Despite Gaudron J’s claims that ‘citizenship is a purely statutory notion’,[18] increasing support has been given to the nation of a Constitutional concept of citizenship that extends beyond the statutory meaning of the term.[19] This was most firmly established in Love and Thoms, where the majority judgement uncovered the existence of a third category of ‘non-citizen, non-aliens’, reviving an earlier category uncovered in Re Patterson[20] that was subsequently reversed in Shaw.[21] While this judgement has gone some way towards securing Constitutional rights of abode for substantive members of Australian society who lack legal citizenship, it is unlikely that Constitutional foundations will suffice to secure a robust and consistent understanding of Constitutional membership that effectively protects citizens from being guaranteed a positive right to entry onto Australian soil.

Legal membership to the Australian body politic is established by way of the legal status of citizenship, which grants ‘full and formal membership’ to the Australian Political Community.[22] A second form of citizenship that has increasingly been recognised by legal theorists is held by non-citizens who continue to socially and economically engage with the political community in a way that may be considered substantive membership.[23] The recent decision in Love and Thoms has established another class of non-citizens beyond the scope of the ‘aliens’ power, who effectively hold a form of Constitutional membership. The tension between the forms of membership present in the Australian community has given rise to a greater debate in Constitutional law regarding whether the extent of the Constitutional concept of citizenship and exclusion can be construed to support a ‘Constitutional Citizen’ that is beyond the scope of Parliament’s powers over aliens in s 51(xix).[24]The existence of this category has been suggested by Kirby J[25] and McHugh J,[26] although some critics have commented on the lack of a solid foundation for such a class of persons.[27]

Constitutional citizenship- ‘Belongers’ as citizens

The possibility of enshrining within Constitutional citizenship a positive right to entry may be extrapolated from the obiter dicta of Eldelman J’s reasoning in Love and Thoms. His Honour, whose claim that ‘Political community is not a concept that is wholly a creature of legislation’[28] uses the tension between legally and substantively constructed membership to Australia as a means of restricting Parliament’s right to expel individuals from Australia. In his judgement for the plaintiff, his Honour referenced the ‘spiritual’ connection between Indigenous Australians and the Australian political territory, therefore steering his argument away from the legal interpretation of the Constitution, which contains neither implied nor explicit acknowledgements of such. Whilst Edelman J’s reference to the ‘metaphysical bonds’ tying Indigenous Australians to the land denotes a particular form of progressivism wherein the Justice seeks to evolve case law in keeping with contextual realities,[29] reflecting the changing political context of Indigenous Australians in law after the decision in Mabo.[30] Reliance on extra-Constitutional and extra-legal scholarship in this case limits the scope of Parliamentary powers through an ideological analysis of ‘alien’ that could also be applied to the ‘naturalization’ limb of s 51 (xix). Although his Honour’s judgement considers only the Parliamentary power to expel rather than to deny entry, his reasoning can be reapplied.  Following Edelman J’s line of reasoning, it may be possible a secure legal status of ‘Constitutional citizenship’, together with associated rights including a right to entry, that safeguards substantive members from arbitrary denial of entry into Australia by the executive or legislature. Such a status would afford citizens a protection from being denied entry based on their connection to the land. Given the precedent of acknowledging ‘belongers’[31] as non-aliens, there may be scope to establishing such a status based on substantive belonging to the Australian community. However, the likelihood of such an approach establishing a robust concept of citizenship is low. Since Pochi,v Mcphee[32] substantive community membership has been considered in the High Court as irrelevant to the finding of Constitutional non-alienage.[33] Whilst the precedent set in Love and Thoms, namely of membership being recognised through spiritual connection to the land and community, is deeply significant as an instance of the High Court limiting Parliament’s power through the Migration Act, it is almost certainly too narrow a constraint to protect citizens’ right to entry. This is particularly true given the relevance of Indigenous rights and principles of Native Title to the Judgement in Love and Thoms, principles which cannot be applied in a different context.

Constitutional citizenship-‘The people of the Constitution’

Some scholars suggest that a foundation for Constitutional citizenship and subsequent rights exists in McHugh J’s obiter dicta in Hwang v Commonwealth of Australia, that a concept of Constitutional membership is enshrined in the Constitutional phrase ‘the people of the commonwealth’. [34] Whilst his notion of Constitutional citizenship as synonymous with ‘the people of the commonwealth’ is unclear in its legal implications,[35] the connection between the Constitutional phrase and the notion of representative democracy has been expounded in case law.[36] To build a notion of constitutional membership founded in democratic principles may, according to a proposal by professor Leslie Zines, ‘potentially encompassing protection for individuals against expulsion from the sovereign body’ (contra Isaacs J’s suggestion in Re Yates)[37]. Nonetheless, there are particular difficulties associated with this course of action, most notably the limited scope that would undoubt restrain any notion of Constitutional membership, the difficulty of establishing a legal mechanism for establishing these rights, and the difficulties of determining those who were substantially involved enough with the Australian community to constitute ‘Constitutional citizens’ or ‘the people of the Commonwealth’ and would thereby be afforded a right to entry. However, as previously discussed, this right would have to be justified not by reference to electoral procedures but rather as part of an ideological construction of ‘the people” as being entitled to entry.

Conclusion

Despite ongoing analysis from the High Court as to the scope of s 51(xix) of the Constitution, the interpretation of citizenship remains too vague to establish a clear framework of citizenship and associated rights such as a right to entry. This weakness translates to a virtually unconstrained Parliamentary power to legislate to deny entry, as Parliament may use the provisions of the Migration Act and the Australian Passport Act to deny citizens re-entry into Australia once they have left. Though there is capacity to establish a form of Constitutional membership independent from statutory concepts of citizenship and entrench a positive right to entry built from an ideological construction of the term ‘citizen’, it remains unlikely such a pathway could be undertaken without amendment to the Constitutional text.

Bibliography

Roach v Electoral Commissioner (2007) 233 CLR 162

Rowe v Electoral Commissioner (2010) 243 CLR 1

Pochi v Macphee (1982) 151 CLR 101

Mabo v Queensland [No 2] (1992) 175 CLR 1

Koroitamana v Commonwealth (2006) 227 CLR 31, 56

Hwang v Commonwealth of Australia (2005) 87 ALD 256

Shaw v Minister for Immigration and Multicultural Affairs [2003] HCA 72

Re Patterson; Ex parte Taylor [2001] HCA 51

Singh v Commonwealth [2004] HCA 43; (2004) 222 CLR 322, 329

Lange v Australian Broadcasting Corporation (1997) 189 CLR 520

Love v Commonwealth of Australia; Thoms v Commonwealth of Australia [2020] HCA 3

Articles

Leslie Zines, The Sovereignty of the People; Power, Parliament and the People

Sangeetha Pillai ‘The legal dimensions of Australian citizenship’ (Doctor of Philosophy Thesis, UNSW, 2015) 1

Justice Susan Kenny "The High Court of Australia and modes of constitutional interpretation" (2007) 10 (1) Federal Judicial Scholarship

Kim Rubenstein, Australian Citizenship Law in Context (Lawbook, 2002)

Sangeetha Pillai. ‘Non-immigrants, non-aliens and people of the commonwealth: Australian constitutional citizenship revisited’ (2013) 39 (2) Monash University Law Review

Christopher Tran, ‘New Perspectives on Australian Constitutional Citizenship and Constitutional Identity’ (2012) 33(1) Adelaide Law Review 202

Michelle Foster ‘An Alien' by the Barest of Threads; The Legality of the Deportation of Long-Term Residents from Australia’ (2009) 33 (2) Melbourne University Law Review 483

Sangeetha Pillai, "The Rights and responsibilities of Australian citizenship: a legislative analysis" [2014] Melbourne University Law Reviw 6; (2014) 37(3) Melbourne University Law Review 736

Webpages

https://legalanswers.sl.nsw.gov.au/hot-topics-voting-and-elections/who-can-vote

https://www.aec.gov.au/Elections/Federal_Elections/2019/downloads.htm