–Julian R. Murphy, Postgraduate Public Interest Fellow, Columbia Law School
Recent developments in Australian constitutional law suggest that the bounds of Australia’s constitutional community are currently unclear, and may well be at odds with the lived experience and beliefs of a significant portion of the Australian public. This post suggests two possible correctives: an “evolutionary” approach to constitutional interpretation informed by contemporary public understandings of the Australian community; or, in the alternative, a constitutional amendment.
The dual citizenship constitutional crisis
As many readers will know, Australia recently weathered something of a constitutional crisis when fifteen politicians were discovered to be ineligible to hold office. This ineligibility was due to the fact that the politicians were “dual citizens”, that is, citizens of Australia and another country. They were thus precluded from sitting in Parliament by section 44 of the Australian Constitution, which relevantly disqualifies from parliamentary office anyone who “is a subject or a citizen of a foreign power”.
The crisis precipitated a rare moment of public reflection on our constitutional text, and even some rumblings of constitutional amendment. Foremost in the debate was the idea that constitutional eligibility requirements, devised in the late 1800s, are anachronistic and unsuited to today’s globalised, multicultural Australia in which a significant portion of the population is born overseas and eligible for dual citizenship.
The crisis having now subsided, it seems unlikely that there will be any constitutional amendment, but the events serve as a stark illustration of how the Constitution’s concept of the polis is sometimes at odds with contemporary understandings of the Australian community. In the remainder of this post I want to reflect on a very different case, but one that might well have caused a second constitutional crisis had it not been strategically mooted by the Government. This case also reveals a disjunction between the constitutional and popular understandings of the scope of the Australian community.
The case I am referring to concerns Daniel Love, a 39-year-old man born to an Australian Aboriginal father and a Papua New Guinean mother. Mr Love was born in Papua New Guinea but has lived in Australia continuously from the age of five. Although Mr Love appears to have been eligible for Australian citizenship, his parents never completed the necessary paperwork, thus his continued presence in Australia was pursuant to a permanent residency visa. Despite his non-citizenship, Mr Love considers himself to be an Australian and, more particularly, an Aboriginal Australian. Mr Love’s further connections to the Australian community are his five children, all of whom are Australian citizens, and his late grandfather, who served in the Australian military in the Second World War.
Recently, however, the Australian Government cancelled Mr Love’s visa on the basis of his criminal record. The Government imprisoned Mr Love in an immigration detention centre and informed him that he would be deported to Papua New Guinea. Mr Love brought a suit in the High Court challenging the lawfulness of the Government’s action. Mr Love argued that the immigration legislation the Government relied on could not validly apply to him, because he was not an “alien” for the purposes of section 51(xix) of the Australian Constitution. Section 51(xix) allows the federal Government to make laws with respect to “naturalization and aliens” and it is the head of power generally understood to undergird federal deportation legislation.
When the media reported on Mr Love’s High Court challenge there was widespread disbelief and anger that the Government was characterising an Aboriginal Australian as an “alien” for constitutional purposes. Perhaps sensing the public sentiment, the Government quickly reversed the visa cancellation, thus mooting the question before the High Court could decide it. It is instructive, however, to consider how the High Court might have decided this case. This is not a purely academic question. Although Mr Love’s case has settled, there are reports of a number of other Aboriginal Australians in a similar position.
An examination of the High Court’s section 51(xix) jurisprudence suggests that it favours an expansive interpretation of the “aliens” power (and thus a restrictive view of what it means to be a non-alien Australian). In a watershed decision in 1992, the High Court held that the term “alien” was synonymous with “non-citizen”. This bright-line, legalistic rule served to obscure some of the nuance in earlier decisions which had talked of notions of “belonging to … place” and “relationship with a country”. Decisions subsequent to 1992 have confirmed that non-citizenship is the criterion of alienage. On this test, it is likely that Mr Love’s Aboriginal heritage would be irrelevant and he would indeed be considered an alien for the purposes of the Australian Constitution, simply by virtue of his parents’ failure to have applied for the citizenship for which he was eligible.
The need for “evolutionary” constitutional interpretation
But the law need not have developed, and it need not continue to develop, in this way. Former Justice of the High Court Michael Kirby, considered by many to have developed the most comprehensive constitutional philosophy of any modern Australian jurist, acknowledged that there might be an alternative, thicker conception of alienage. On this account, alienage would be defined in opposition to the concept of “the Australian community” or the “Australian nationality”. Importantly for Mr Love’s purposes, Kirby’s concept of nationality was capacious enough to have previously encompassed persons who were not statutory citizens of Australia. Today, as Australia increasingly recognises the centrality of Aboriginals to our national self-identity, this “evolutionary” understanding of the Australian community might well encompass a person in Mr Love’s position.
Unfortunately, this progressive brand of evolutionary constitutional interpretation is unlikely to find much support amongst the Justices of the High Court. As I have written elsewhere, the orthodox Australian approach to constitutional interpretation falls somewhere between American originalism and Canadian “living tree” doctrine. While, in theory, the Australian approach is not restricted to the original public meaning of the constitutional text, in reality, it is exceedingly rare for the courts to depart from a settled historical understanding of a constitutional concept or power. Accordingly, it is likely that the High Court will continue to favour ideas of citizenship and alienage that place little emphasis on Aboriginality as an indicator of inclusion in the Australian community.
A constitutional amendment to recognise Aboriginal Australians
Of course, aside from evolutionary interpretation, there is another route to bringing constitutional jurisprudence more in line with contemporary understandings of the Australian community: constitutional amendment. Constitutional amendment in Australia is notoriously difficult, requiring the approval of a majority of voters in a majority of states and an absolute majority of all voters. Of the 44 constitutional amendments previously put to the Australian public, only eight have been approved.
Yet there is a real prospect of a constitutional amendment to recognise Aboriginal Australians (and the other indigenous peoples of Australia, the Torres Strait Islanders). At present, the text of the Constitution makes no mention of Aboriginal people but in recent years there has been a concerted push for this to change. While a variety of constitutional amendments are being debated, most agree that, at a minimum, the constitutional preamble should be changed to include recognition of the prior occupancy of the land by Aboriginal people and their continuing unique presence in the Australian community. So, for example, the statutory representative body of Australia’s indigenous peoples previously recommended that the preamble include the following words:
[T]he territory of Australia has long been occupied by Aboriginal peoples and Torres Strait Islanders whose ancestors inhabited Australia and maintained traditional titles to the land for thousands of years … [They] have a distinct cultural status as indigenous peoples.
Admittedly, an amendment to the preamble in the above terms would involve no explicit change to the aliens power in s 51(xix) of the Constitution that caused Mr Love so much trouble. Yet constitutional provisions like s 51(xix) are not interpreted in isolation and the values expressed in a preamble should serve as a compass guiding interpretation of the entire document. If such a constitutional amendment were passed it would go a considerable way to correcting the anomalous current conception of the Australian constitutional community so as to unequivocally include Aboriginal Australians in the position of Mr Love.
What the dual citizenship imbroglio and Mr Love’s cases have in common is that they highlight the disparity between jurisprudential and popular understandings of the makeup of the Australian constitutional community. This is no small problem. If a written constitution is supposed to be an enduring governing document, capable of commanding allegiance from succeeding generations, then it needs to be interpreted flexibly enough to accord with expanding public understandings of what it means to be a member of the Australian community. This post has suggested that an evolutionary interpretative approach to the aliens power would allow the High Court to align the constitutional text with the public’s own understandings of what it means to be an Australian. Admittedly there are not great prospects of such a progressive interpretative approach being adopted by the current High Court. Accordingly, the preferable measure may be the continued pursuit of a constitutional amendment recognising Aboriginal Australians.
Suggested Citation: Julian R. Murphy, Citizens, Aliens and Aboriginal Australians – An Uncertain Constitutional Community, Int’l J. Const. L. Blog, Oct. 19, 2018, at: http://www.iconnectblog.com/2018/10/citizens-aliens-and-aboriginal-australians-an-uncertain-constitutional-community
 See Harry Hobbs, Sangeetha Pillai and George Williams, “The disqualification of dual citizens from Parliament: Three problems and a solution” (2018) 43 Alternative Law Journal 73 <http://journals.sagepub.com/doi/pdf/10.1177/1037969X18777910>.
 See Mark Willacy, “Aboriginal man Daniel Love facing deportation to PNG, lawyers say” ABC News Online (19 September 2018) < http://www.abc.net.au/news/2018-09-19/aboriginal-man-facing-deportation-to-png-takes-case-high-court/10262952>.
 Hannah Ryan, “An Aboriginal Man Spent Seven Months in Immigration Detention” Buzzfeed (27 September 2018) <https://www.buzzfeed.com/hannahryan/aboriginal-indigenous-immigration-detention>.
 Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1, 25 (Brennan, Deane and Dawson JJ).
 Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178, 183 (Mason CJ, Wilson, Brennan, Deane, Dawson and Toohey JJ).
 Singh v The Commonwealth (2004) 222 CLR 322, 342 (Gleeson CJ); Hwang v The Commonwealth (2005) ALJR 125, 129 (McHugh J); Koroitama v The Commonwealth (2006) 227 CLR 31, 38 (Gleeson CJ and Heydon J).
 See, e.g., Scott Guy and Kirsty Richardson, “Justices Murphy and Kirby: Reviving Social Democracy and the Constitution” (2010) 22 Bond Law Review 26; Stephen Puttick, “All-Embracing Approaches to Constitutional Interpretation and ‘Moderate Originalism’” (2017) 42 University of Western Australia Law Review 30.
 Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28, 61-62 (Kirby J).
 Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28, 65 (Kirby J). For a generally applicable concept of evolutionary interpretation see Jeremy Kirk, “Constitutional Interpretation and a Theory of Evolutionary Originalism” (1999) 27 Federal Law Review 323.
 Julian R Murphy, “Justice Edelman’s Originalism, Or Hints of It” AUSPUBLAW (6 November 2017) <https://auspublaw.org/2017/11/justice-edelmans-originalism/>.
 Quoted in John Chesterman, “Toward Indigenous Recognition in the Australian Constitution: Getting the Words Right” (2008) 7(4) Indigenous Law Bulletin 10, 11.
 Anne Twomey, “The Application of Constitutional Preambles and the Constitutional Recognition of Indigenous Australians” (2013) 62 International and Comparative Law Quarterly 317, 332; Matthew v State of Trinidad and Tobago  1 AC 433,  (Lord Hoffman).