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	QUT Law & Justice Journal

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.]

I INTRODUCTION

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.

II RE MIMIA; EX PARTE AME

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] HCA 39; (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] HCA 61; (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 92; (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) 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) 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] HCA 61; (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] HCA 64; (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 Ac