Non-Immigrants, Non-Aliens and People of the Commonwealth: Australian Constitutional Citizenship Revisited

In recent years, despite the lack of express reference to a national citizenship in the Australian Constitution, arguments that Australian citizenship has a constitutional dimension have gained momentum amongst both scholars and members of the judiciary. These arguments identify a number of constitutional provisions that are relevant to notions of citizenship and community membership, as well as various conceptual bases which may aid the implication of citizenship rights. What is lacking, however, is an examination of the potential for a constitutional concept of citizenship to unfold in a manner that reconciles the jurisprudence with respect to each of these elements. This article commences this analysis. It argues that the potential for the implication of a constitutional concept of citizenship is strong, but that two things inhibit the coherent development of such a concept at this stage: the inability to point to a precise conceptual basis underpinning it, and a lack of certainty about the interaction between the Commonwealth’s powers over aliens and immigration and the constitutional phrase ‘the people of the Commonwealth’.