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Still Call Australia Home: The Constitution and the Citizen's Right of Abode


Helen Irving


University of Sydney - Faculty of Law


Sydney Law Review, Vol. 30, No. 1, pp. 133-153, 2008
Sydney Law School Research Paper No. 08/36

Abstract:     
The Australian Constitution contains no express references to Australian citizenship. Despite this, the constitutional validity of Commonwealth citizenship law is not in doubt. Until 2005, citizenship was largely regarded as a statutory matter, and the Commonwealth Parliament was considered free to define citizenship as it wished. Recently, however, a shift has been signalled, with McHugh J's suggestion in Hwang v Commonwealth that citizenship law is shaped and limited by the Constitution itself. The question now arises: what is the constitutional character of Australian citizenship?

In this article, I argue that the constitutional concept of citizenship is defined, specifically, by the right of abode in Australia. This is not a freestanding concept, but is grounded in the constitutional heads of power that the High Court has, from time to time, identified as supporting citizenship laws, namely, the 'aliens' and 'immigration' powers (respectively, ss 51(xix) and (xxvii)). The relationship between citizenship and the right of abode has evolved but, as I seek to demonstrate, it has been recognised in Australian case law since 1908.

Number of Pages in PDF File: 23

Keywords: Citizenship, Citizens¿ rights, Australian Constitution, Alienage

JEL Classification: K10, K30

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Date posted: April 16, 2008  

Suggested Citation

Irving, Helen, Still Call Australia Home: The Constitution and the Citizen's Right of Abode. Sydney Law Review, Vol. 30, No. 1, pp. 133-153, 2008; Sydney Law School Research Paper No. 08/36. Available at SSRN: http://ssrn.com/abstract=1120589

Contact Information

Helen Irving (Contact Author)
University of Sydney - Faculty of Law ( email )
Faculty of Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia
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