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

20 Pages Posted: 22 Jun 2009  

Mary Elizabeth Crock

The University of Sydney Law School

Date Written: June, 19 2009

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 Classification: K10, K30, K33

Suggested Citation

Crock, Mary Elizabeth, Defining Strangers: Human Rights, Immigrants and the Foundations of a Just Society (June, 19 2009). Melbourne Univeristy Law Review, Vol. 31, No. 3, pp. 1053-1071, 2007; Sydney Law School Research Paper No. 09/57. Available at SSRN: https://ssrn.com/abstract=1422267

Mary Elizabeth Crock (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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