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Citizenship and the Constitutional Convention Debates: A Mere Legal Inference

Published online by Cambridge University Press:  24 January 2025

Kim Rubenstein
Kim Rubenstein*
Affiliation:
University of Melbourne
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Extract

“Again, I ask are we to have a Commonwealth citizenship? If we are, why is it not to be implanted in the Constitution? Why is it to be merely a legal inference?”

These exasperated words were uttered by John Quick on Wednesday, 2nd March, 1898, in the concluding stages of the Australasian Federal Convention Debates that led to the formation of the Australian Constitution. Quick wanted a definition of citizenship in the Constitution. The Commonwealth, he argued, should have power to deal with Commonwealth citizenship, and membership of the Commonwealth; he advocated a “common citizenship for the whole of the Australian Commonwealth”. His proposals were rejected.

Type
Research Article
Information
Federal Law Review , Volume 25 , Issue 2 , June 1997 , pp. 295 - 316
Copyright
Copyright © 1997 The Australian National University

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Footnotes

I would like to thank Jenny Patterson for her research assistance which was funded by an Australia Research Council small grant, and her comments on the draft of this article. I would also like to thank Nick Seddon, Kylie Evans and Peggy Kerdo for their editorial assistance. I am grateful to Cheryl Saunders, John Williams and an anonymous referee for comments. The views expressed, however, are those of the author.

References

1 Official Record of the Debates of the Australasian Federal Convention (1986) (Melbourne 1898)Vol Vat 1767. Hereinafter referred to as Record of the Debates of the Convention.

2 The Melbourne session of the Convention ran from 20 January to 17 March 1898. J Quic and D G Garran, The Annotated Constitution of the Australian Commonwealth 1901 (1995) at 194.

3 Quick moved that a new subsection be introduced to clause 52 (Powers of the Parliament):XXIA Commonwealth citizenship. Record of the Debates of the Convention (Melbourne 1898) Vol Vat 1749.

4 Ibid at 1753.

5 Ibid at 1751.

6 The first National Australasian Convention “empowered to consider and report upon an adequate scheme for a Federal Constitution,” was duly convened in Sydney on 2 March 1891.

7 Deakin, Alfred, “The Federal Story” in S Macintyre (ed), “And be one People”: Alfred Deakin's Federal Story (1995) at 34Google Scholar.

8 Record of the Debates of the Convention (Sydney 1891) Vol 1 at 93-95.

9 “A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen in such other State”.

10 Inglis Clark was influential on the question of equal protection of citizens, although he does not figure prominently in this article because he was not present at the 1898 Convention upon which most of the discussion is based. For an analysis of Clark's involvement see Williams, J, “Race, Citizenship and the Formation of the Australian Constitution: Andrew Inglis Clark and the 14th Amendment” (1996) 42 Australian Journal of Politics and History 10CrossRefGoogle Scholar and Williams, J, “With our Eyes Open: Andrew Inglis Clark and Our Republican Tradition” (1995) 23 FL Rev 149Google Scholar.

11 Record of the Debates of the Convention (Melb, 1898) Vol IV at 685. I thank John Williams for highlighting this point for me.

12 See Schoff, P, “The High Court and History: It Still Hasn't Found(ed) what It's Looking For”(1994) 5 PLR 253Google Scholar which analyses the rule in Cole v Whitfield (1988) 165 CLR 360 and its application in subsequent cases.

13 Although, the absence of the term citizen in the Constitution has had significant legal consequences, with which the High Court has been involved. See further below n 17 and Part II of this paper.

14 The Act came into operation on 26 January 1949. In 1993, the Australian Parliament's Joint Standing Committee on Migration was given a reference on the Australian Citizenship Act, and in 1994 it produced a report Australians All: Enhancing Australian Citizenship (September 1994) (Australians All). See also the government response to the report tabled in the Senate on 4 September 1995, titled The Ties that Bind.

15 In December 1993, the Australian Parliament's Senate Standing Committee on Legal and Constitutional Affairs inquired into the possibility of a system of National Citizenship Indicators. This body became the Senate Legal and Constitutional References Committee. A discussion paper was published in May 1995. Its repor,National Well-being: A system of National Citizenship Indicators and Benchmarks (April, 1996) was tabled in April 1996.

16 The Howard government restricted the issues to be raised in the proposed 1997 People's Convention to the Republic. The Minister for Immigration andMulticultural Affairs has announced that he will set up an Australian Council on Citizenship (ACC) which will undertake a review of Australian Citizenship, including howto celebrate the 50th Anniversary of the Citizenship Act on 26 January 1999: Fact Sheet 12 (3 October 1996), Public Affairs Section, Department of Immigration and Multicultural Affairs. This will not necessarily look at the insertion of citizenship in the Constitution.

17 See Rubenstein, K, “Citizenship in Australia: Unscrambling its Meaning” (1995) 20 MULR 508Google Scholar. This is also developed further in Part II of this article.

18 Alfred Deakin, above n 7; J Quick and D G Garran, above n 2; La Nauze, J A, The Making of the Australian Constitution (1972)Google Scholar; Martin, A W, Essays in Australian Federation (1969)CrossRefGoogle Scholar.

19 Most of the discussion emanates from the 1898 Convention in which the following delegates are important: Edmund Barton MLC QC (NSW), The Right Honourable Charles, Kingston, Premier (SA), Dr John Quick (Vic), Josiah Henry. Symon QC (SA), The Honourable James Henderson Howe (SA), The Honourable Sir John Downer QC, KCMG, MHA (SA), The Right Honourable Sir John Forrest, Premier (WA), The Honourable John Alexander Cockburn, Minister for Education, (SA), The Honourable Joseph Hector Carruthers, MLA, Secretary for Lands (NSW), The Honourable Isaac Alfred Isaacs, Ml.A, Attorney-General (Vic), The Honourable Richard Edward O'Connor MLC, QC, (NSW), Bernhard Ringrose Wise (NSW), The Honourable Adye Douglas, President, Legislative Council, (Tas), Patrick McMahon Glynn BA, LLB (SA), The Honourable John Hannah Gordon, MLC (SA) Henry Bourne Higgins, MLA (Vic), William Arthur Trenwith MLA1 (Vic) and The Honourable Frederick William Holder, MHA (Treasurer, SA). All the title are cited in J Quick and D G Garran, above n 2 at 260-261. Andrew Inglis Clark was noi present at the 1898 Convention. However his original draft of the Constitution in 1891 war the basis for much discussion as was his Tasmanian amendment to clause 110 which wat central to the discussion.

20 See below n 44.

21 Record of the Debates of the Federal Convention (Adelaide 1897) Vol III at 1020. Note section 2 which allows the State to disqualify persons of any race from voting and, if so disqualifiec in the State, they are not to be counted.

22 Irving, H (ed),A Woman's Constitution (1995)Google Scholar deals with women and their involvement witl the Federation movement. The place of Aboriginal people in the Constitution has been om of the concerns of the Council for Reconciliation. See also H Reynolds, Aborigina Sovereignty (1996.

23 J Quick and D G Garran, above n 2. Commentary on citizenship can be found at pages 449 491, 776, and 955.

24 For another critique of Quick and Garran's account see Williams, J, “Race, Citizenship and the Formation of the Australian Constitution: Andrew Inglis Clark and the '14th Amendment"' (1996) 42 Austr J Pol Hist 10 at 16-18Google Scholar.

25 Record of the Debates of the Convention,above n 1.

26 See Deakin's description of Symon in Alfred Deakin, above n 7 at 61.

27 Record of the Debates of the Convention (Melb 1898) Vol Vat 1782 (emphasis added).

28 Ibid at 1781.

29 Alfred Deakin, above n 7 at 71.

30 Record of the Debates of the Convention (Melb 1898) Vol Vat 1761.

31 Alfred Deakin, above n 7 at 66.

32 Record of the Debates of the Convention (Melb 1898) Vol IV at 667.

33 Alfred Deakin, above n 7 at 70.

34 Record of the Debates of the Convention (Melb 1898) Vol Vat 1797.

35 Ibid at 1752.

36 This raised federal issues as well, discussed below pp 302-304.

37 Record of the Debates of the Convention (Melb 1898) Vol Vat 1763 (emphasis added).

38 Ibid. O'Connor at 1754.

39 Record of the Debates of the Convention (Melb 1898) Vol IV at 672.

40 Record of the Debates of the Convention (Melb 1898) Vol V, Barton at 1765.

41 Record of the Debates of the Convention (Melb 1898) Vol IV at 664.

42 Record of the Debates of the Convention (Melb 1898) Vol Vat 1761.

43 Ibid at 1796 (Isaacs and O'Connor).

44 Record of the Debates of the Convention (Melb 1898) Vol V at 1794 (emphasis added). The treatment of women in the Constitutional debates is another interesting area in itself. See Cass, D and Rubenstein, K, “Representationts of Women in the Australian Constitutional System” (1995) Adelaide Law Review 48Google Scholar and H Irving, above n 22.

45 Record of the Debates of the Convention (Melb 1898) Vol Vat 1795.

46 Ibid.

47 Ibid at 1796.

48 This will be examined in Part II of this paper.

49 Discussions about section 44 can be found in Record of the Debates of the Convention, “Guide to provisions” Vol VI at 405-411.

50 Record of the Debates of the Convention (Adelaide 1897) Vol III at 736.

51 Record of the Debates of the Convention (Sydney, 1897) Vol II, Barton at 1013.

52 Ibid. The significant debate, however, over the disqualification section was whether it should be constitutionally entrenched, or left to Federal parliament to alter. Record of the Debates of the Convention (Sydney, 1897) Vol II, Glynn at 1012.

53 Record of the Debates of the Convention (Sydney 1891) Vol 1 at 94-95 (emphasis added).

54 Alfred Deakin, above n 7 at 70.

55 Record of the Debates of the Federal Convention (Adelaide 1897) Vol III at 101.

56 Record of the Debates of the Convention (Melb 1898)Vol Vat 1764.

57 Record of the Debates of the Convention (Melb 1898)Vol IV at 675.

58 Ibid.

59 Section 109.

60 Record of the Debates of the Convention (Melb 1898) Vol Vat 1750.

61 Ibid at 1751.

62 Record of the Debates of the Convention (Melb 1898) Vol IV at 681.

63 Record of the Debates of the Convention (Melb 1898) Vol V, O'Connor at 1761.

64 Ibid at 1764.

65 Section 51(XIX). See Symon, Record of the Debates of the Convention (Melb 1898) Vol V ai 1764 and the further discussion about racism and exclusion.

66 Record of the Debates of the Convention (Melb 1898) Vol Vat 1764.

67 See below pp 306-308.

68 Record of the Debates of the Convention (Melb 1898) Vol Vat 1764.

69 Ibid at 1758-1759.

70 Ibid at 1759. He did support the inclusion of power over Commonwealth citizenship, fm “[i]f that is to be found unnecessary, it will never be acted upon.” at 1760.

71 Record of the Debates of the Convention (Melb 1898) Vol Vat 1786.

72 Ibid at 1797.

73 Record of the Debates of the Convention (Melb 1898) Vol IV at 664.

74 Which reads: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any state deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the law”.

75 Record of the Debates of the Convention (Melb 1898) Vol IV at 667. Andrew Inglis Clark was responsible for the drafting of this amendment. See Williams, J, “Race, Citizenship and the Formation of the Australian Constitution: Andrew Inglis Clark and the 14th Amendment” (1996) 42 Austr J Pol Hist 10 at 14-16CrossRefGoogle Scholar.

76 He referred to the Slaughterhouse cases 1872, 16 Wallace 36, cited in Record of the Debates of the Convention (Melb 1898) Vol IV at 668.

77 Ibid.

78 Record of the Debates of the Convention (Melb 1898) Vol V at 1765.

79 Ibid at 1761.

80 See D Cass and K Rubenstein above n 44.

81 Record of the Debates of the Convention (Melbourne 1898) Vol Vat 1788-1797.

82 Ibid at 1797.

83 (Emphasis added). These words allude to the intrinsic nature of citizenship as related to r blood, as discussed in the section above on “birthright/naturalisation”. Memorial tor Secretary of State for Colonies, Westminster, from the Colonial Secretary's Office, Sydney 25/1/1881, quoted in Yarwood, AT, Attitudes to Non-European Immigration (1968) 19Google Scholar and I reprinted in Price, CA, The Great White Walls are Built. Restrictive Immigration to Northr America and Australia 1836-1888 (1974) at 168Google Scholar.

84 Record of the Debates of the Convention (Melb 1898) Vol IV at 246. This highlights the paradox of Quick's position regarding citizenship. He was the proposer of a common citizenship,, yet it was the concern about exclusion, with which he agreed, which led to the downfall of1 his proposal.

85 Ibid at 247.

86 Ibid.

87 Record of the Debates of the Convention (Melb 1898) Vol Vat 1801.

88 Record of the Debates of the Convention (Melb 1898) Vol IV at 250.

89 See the description of Howe in Alfred Deakin, above n 7 at 61.

90 Record of the Debates of the Convention (Melb 1898) Vol IV at 250.

91 Ibid at 251.

92 Record of the Debates of the Convention (Melb 1898) Vol Vat 1760.

93 Emphasis added. This statement is consistent with feminist critiques of citizenship as a male dominated, gendered concept.

94 Cth Parl Deb 1901, (1st Parliament) 12 September 1901, at 4804.

95 Ibid at 4805. He also championed the power to deal with people of any and every race(except the Aboriginal inhabitants) and his comments about the Aboriginal people also reflect notions of white superiority.

96 The Naturalization Act 1903 (Cth), s 3 defined “British subject” as a natural-born British subject or a naturalized person. A naturalized person was someone naturalized under the Act. Section 8 provided that the status of naturalized persons was equal to that of British subjects.

97 Australian Citizenship Amendment Act 1984 (Cth).

98 Australian Citizenship Act 1973 (Cth).

99 For a review of the changes until 1981 see M Pryles, Australian Citizenship Law (1981) and for a summary of the changes see Australians All, above n 14 at 15-18. The Rt Hon Sir Ninian Stephen surveyed the developments in “Issues in Citizenship” on the occasion of The Deakin Lecture at the University of Melbourne, Thursday 26th August 1993.

100 Australian Citizenship Act 1948 (Cth), slO.

101 Australian Citizenship Act 1948 (Cth), slOA.

102 Australian Citizenship Act 1948 (Cth), slOB.

103 Australian Citizenship Act 1948 (Cth), sl3.

104 However, one view is that Parliament could not retrospectively take away someone's status as a non-alien under Australian citizenship legislation. See Nolan v Minister for Immigration and Ethnic Affairs (1988) 168 CLR 178 per Gaudron J at 193.

105 Of course, the framers were predominantly discussing the rights of white Anglo-Saxon/Celtic males.

106 (1985) 159 CLR 550.

107 The report on enhancing Australian citizenship proposed that section 10 remain unchanged. See Australians All, above n 14 at 100-101.

108 Record of the Debates of the Convention (Melb 1898) Vol IV at 681.

109 There is no clear definition of the term “offence”. It is just an offence which is so serious that it requires a jury. See discussion in P Hanks, Constitutional Law in Australia (1991) at 409-411.

110 The Judiciary Act 1903 (Cth), s 68 provides for State laws to apply in the procedure for trials and conviction on indictment to persons charged with Commonwealth offences. For High Court matters, section 77D requires that the laws that apply, for the purpose of the trial of civil proceedings in the Supreme Court of the State or Territory, apply in civil matters in which a trial is had with a jury in the High Court in that State or Territory. The right to seek an order that a trial of fact be heard by judge and jury exists in the Federal context in Order 31 of the Federal Court Rules.

111 This includes, amongst others, the Governor General, Members of the Federal Executive Council and Members of both Houses of Parliament.

112 Juries Act 1967 (ACT), s 9; Jury Act 1977 (NSW), s 5; Juries Act 1980 (NT), s 9; Jury Act 1929(Qld), s 6; Juries Act 1927 (SA), s 11; Jury Act 1899 (Tas), s 4; Juries Act 1967 (Vic), s 4; Juries Act 1957 (WA), s 4.

113 Juries Act 1967 (ACT), s 10; Jury Act 1977 (NSW), s 6; and Juries Act 1980 (NT), s 10; Jury Act 1929 (Qld), s 7; Juries Act 1927 (SA), s 12; Jury Act 1899 (Tas) ss 6 and 7; Juries Act 1967(Vic), s 4(2), 4(3), ands 5; Juries Act 1957 (WA), s 5.

114 Juries Act 1967 (ACT), s 11; Jury Act 1977 (NSW), s 7, Schedule 3; Juries Act 1980 (NT), s 11,Schedule 7; Jury Act 1929 (Qld), s 8; Juries Act 1927 (SA), s 13, Schedule 3 (ineligibility); Jury Act 1899 (Tas), s 7(A), Schedule 1; Juries Act 1967 (Vic), s 4(4), Schedule 4; Juries Act 1957 (WA), s 5(c), Schedule 2.

115 Jury Act 1977 (NSW), s 7, Schedule 3.

116 Juries Act 1967 (Vic), s 4(4), Schedule 4.

117 This terminology was changed with the introduction of the Australian Citizenship Amendment Act 1984 (Cth).

118 Section 44(i).

119 Sykes v Cleary [No 2] (1992) 176 CLR 77

120 See above p 302.

121 See Rubenstein, K, “Dual reasons for dual citizenship”(1995)3 People and Place 57Google Scholar and Betts, K, “Multiple Citizenships: Two Reports and some Implications”(1995) 3 People and Place 58Google Scholar.

122 For a fuller discussion about the centrality of allegiance to Australian Citizenship, see Dutton, D, “The 'Call of the Blood' Allegiance, Nationality and Australian Citizenship 1901-1940”Google Scholar, paper presented to the “Australian Identities: History, Culture and Environment” conference, Dublin 1996 (in possession of author) and forthcoming work of D Dutton as part of a Ph D on Australian Nationality.

123 Currently, individuals who were born and have citizenship in another country are entitled, according to Australian law, to maintain their former citizenship on taking up Australian citizenship. Their own country's law may, however, preclude them from maintaining that citizenship. Moreover, the Australian Citizenship Act 1948(Cth), s 17 prevents an existing Australian citizen from taking up another citizenship.

124 There is extensive literature in political journals about the changed international environment for States. This includes the influence of the international economy,international law, and technological advances which have transcended the borders of nation-states. See further, Kennedy, P, Preparing for the 21st Century (1994)Google Scholar; Held, D, “Democracy, the nation-state and the global system” (1991) 20 Economy and Society 138CrossRefGoogle Scholar; Archibugi, D and Held, D (eds), Cosmopolitan Democracy: An Agenda For A New World Order (1995)Google Scholar; Ohmae, K, The Borderless World (1991)Google Scholar; Walker, R BJ and Mendlovitz, S, Contending Sovereignties: Redefining Political Community (1990)CrossRefGoogle Scholar; Elkins, D, Beyond Sovereignty: Territory And Political Economy In The Twenty First Century (1995)Google Scholar.

125 The House of Representatives Committee on Legal and Constitutional Affairs is, at the time of writing, undertaking a review of the disqualification provisions ins 44(i) and (iv). Submissions were due before the Committee on 7 March 1997.

126 Juries Act 1967 (ACT), s 9; , Jury Act 1977 (NSW), s S; Juries Act 1980 (NT), s 9; Jury Act 1929 (Qld), s 6; Juries Act 1927 (SA), s 11; Jury Act 1899(Tas), s 4; Juries Act 1967 (Vic), s 4 Juries Act 1957 (WA), s 4.

127 Section 34.

128 Section 61C.

129 See further K Rubenstein, above n 17.

130 See Leeth v The Commonwealth (1992) 174 CLR 455 per Deane and Toohey JJ at 480 and Gaudron J at 494.

131 Marshall, TH, Citizenship and Social Class (1950)Google Scholar.

132 The discussion paper of the National Citizenship Indicators Inquiry lists a range of possible matters which involve rights and duties of citizenship in this broader sense, above n 15 at 61-67.

133 In 1902, the Commonwealth Electoral Act denied Aboriginal people the right to vote. Extraordinarily, and anomalously, the Aborigines who had been voting in their own states, were stripped of that right. Aborigines waited 60 years for the passage of amending legislation, and in the Federal election of 1963 they were entitled to vote. For further discussion on the voting rights of Aborigines see Stretton, P and Finnimore, C, “Black Fellow Citizens: Aborigines and the Commonwealth Franchise” (1993) 25 Australian Historical Studies 521CrossRefGoogle Scholar.

l34 See D Cass and K Rubenstein, above n 44.

135 See above n 15.

136 The women who were politically active in the 1890s were concerned with these broader approaches to citizenship. See some of the newspaper articles of Lawson, Louisa in “The Dawn 1888-1895” in O Lawson (ed), The First Voice of Australian Feminism: Excerpts from Louisa Lawson's The Dawn 1888-1895 (1990)Google Scholar.

137 Several submissions to this effect were made to the inquiry Australians All, above n 14 at 89-95. Similarly, the Australian Law Reform Commission raised this issue before the National Citizenship Indicators inquiry, above n 15, Submission No 43, at 4.

138 See the opening words of the Act.

139 The authority to regulate non-citizens comes from the Commonwealth's power to legislate with respect to aliens and naturalisation in the Constitution, s Sl(xix).

140 Section 42.

141 Subdivision D (Visas may be cancelled on certain grounds) of Division 3 (Visas for Non citizens). Note, however, that there are certain procedures which )nust be followed, as set out in Subdivision E (Procedure for cancelling visas under Subdivision Din or outside of Australia).

142 Pauline Hanson, maiden speech. Cth H Reps Deb 1996, Vol 8 at 381&0.