Defining Strangers: Human Rights, Immigrants and the Foundations of a Just Society

Abstract:     
This article explores the extent to which the law's treatment of immigrants has shaped notions of human rights in Australia. It examines the ramifications of the choice made at Federation not to include Australian citizenship in the Australian Constitution, but rather to confer power on the Parliament to legislate such status. It is argued that the constitutional silence resulted in fragilities in both concepts of membership and in the regime for the protection of human rights in Australia. As well as creating profound ambiguities as to who was and was not a constituent part of the Australian polity, vesting the power to determine membership in Parliament has made the protection of human rights highly politicised. The discomforting results of judicial deference in such a climate are seen in cases like Ai Kateb v Godwin. It is dangerous to align notions of human rights with citizenship because of the ease with which people can be deliberately or mistakenly characterised as societal 'outsiders'.

Keywords: citizenship, constitutions, human rights, immigration

JEL Classifications: K10, K30, K33

Accepted Paper Series