5.3 CITIZENSHIP IN THE AUSTRALIAN CONSTITUTION

 

WHAT DOES THE CONSTITUTION SAY ABOUT CITIZENSHIP?

The Constitution does not mention the word 'citizenship'. In fact, the only reference to 'citizen' is in section 44 which says that "citizen of a foreign power" cannot become a member of the Commonwealth Parliament.

However, many sections of the Constitution are built upon the idea of citizenship, in the sense of the active involvement of citizens in the running of their country. For example, the requirement that both houses of parliament "be directly chosen by the people" presupposes a democratic structure where citizens choose their parliamentary representatives. In addition, the sections of the Constitution regulating the structure and roles of the Commonwealth Parliament and the High Court affect the citizenship rights of Australians by providing for representative institutions and the fair application of the law.

 

WHAT TERM DOES THE CONSTITUTION USE INSTEAD OF 'CITIZEN'?

The Constitution uses the phrase 'subject of the Queen' instead of 'citizen'. An early draft of the Constitution did refer in one place to 'citizens of other States' but 'subject of the Queen' replaced this in the final draft.

The Constitution also uses the terms 'people of the States' and 'people of the Commonwealth', but these terms aren't defined.

 

HOW DID THIS COME ABOUT?

The drafters of the Constitution chose not to use the term 'citizen' partly because of loyalist sentiment. Although they were creating a new self-governing nation, the drafters chose to retain formal links with the British monarch. The Constitution (which itself is part of an Act of the British Parliament) preserved rather than challenged Australia's close association with Britain.

The word 'citizen' had been used in the American and French revolutions to reflect the new status of individuals following violent confrontations with old regimes. The Australian founders were wary of the republican overtones that the term 'citizen' would convey.

The drafters reluctance to specifically mention 'citizen' and citizenship rights in the Constitution also reflected a concern about the effect of the Constitution on the States. During the conventions of the 1890s that led to the adoption of the Australian Constitution, one delegate argued that 'Australian citizenship' should be defined and that the States should be prevented from depriving anyone of the rights of this citizenship. This was opposed by the majority of delegates, who believed that such a statement of citizenship rights would inevitably lead to less power for the States.

Australia's federal system of government, enshrined in the Constitution, leaves the States with the power to make laws over a range of key citizenship areas. The States, for instance, largely have the power to determine who can vote in State elections and to decide how criminal and civil trials are conducted. The drafters were concerned that a Constitutional statement of Australian citizenship rights might affect the ability of the States to retain control over these areas.

In fact, the Commonwealth Parliament has made laws about citizenship since 1948, when the member countries of the Commonwealth of Nations (former British colonies, now self-governing nations) agreed to create a status of national citizen in addition to that of British subject. The Commonwealth's power to do this is thought to be found in the power the Constitution gives it over "naturalisation and aliens" in section 51 (xix).

 

SHOULD THE CONSTITUTION SAY MORE ABOUT CITIZENSHIP?

There have been some suggestions that the appropriate place for a statement about Australian citizenship, and the rights and duties of Australian citizens, is in the Constitution.

However, Australia's gradual evolution towards independence from Britain raises some legal questions about the notion of citizenship even in the Constitution as it now stands. For example, it may not be clear whether section 44, which disqualifies anyone "under any acknowledgment of allegiance to a foreign power" from being a member of the Commonwealth Parliament, also applies to British subjects.

Section 117 also uses the term 'subject of the Queen' and protects such people from discrimination because of the State in which they live. Would the term 'citizen' be better in this section? Or would 'person' be better, so as to extend that right to non-citizens resident in Australia?

Whether the Australian Constitution should contain a statement of the rights of citizens is similar to asking whether Australia should have a bill of rights. Some people argue, as most of the drafters did, that such a statement is unnecessary. According to this argument, the legal rights and obligations of Australians are adequately protected already. There may also be concern that any statement of citizenship rights in the Constitution would detrimentally affect the balance of power between the Commonwealth and the States.

An opposing argument is that a statement of citizenship rights would enable marginalised groups to challenge unfair discrimination. The Aboriginal people, for instance, may have been able to challenge the treatment they received from governments in the decades after federation had there been a statement in the Constitution of the rights and duties of Australian citizens.

A further argument in favour of an inclusion of a bill of rights is that even if things seem all right at the moment, the rights and duties of Australian citizens need to be entrenched so that they cannot be diminished by future governments or courts.

SUMMARY

FURTHER READING

Joint Standing Committee on Migration (Commonwealth Parliament), Australians All: Enhancing Australian Citizenship, AGPS, Canberra, 1994.

Ninian Stephen, Issues in Citizenship, Alfred Deakin Lecture, August 1993 (available from the Constitutional Centenary Foundation).

Fact Sheet 5.1, Citizenship

Fact Sheet 5.2, Citizenship in Australia

Back to the Citizenship index.

 

The Constitutional Centenary Foundation is an independent organisation which was established to encourage and assist public debate on the Australian system of government during the lead-up to the centenary of the Constitution in 2001. 

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