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

23 Pages Posted: 16 Apr 2008  

Helen Irving

The University of Sydney Law School

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.

Keywords: Citizenship, Citizens┬┐ rights, Australian Constitution, Alienage

JEL Classification: K10, K30

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: https://ssrn.com/abstract=1120589

Helen Irving (Contact Author)

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

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