This article belongs to the debate » 9/11 und Migration, Asyl und Staatsbürgerschaft
08 November 2021

Post-9/11 Australia has pushed a tradition of exclusion to constitutional extremes

‘A shared identity’, ‘a common bond’ and ‘a privilege offering enormous rewards’ are terms that the Australian government uses to describe Australian citizenship. Commentators have used other terms: ‘thin’, ‘contradictory’, ‘the forgotten poorer cousin of Australian constitutional law’. In the 120 years since Australian Federation, citizenship’s primary legal significance has been protection against the wholesale exclusion that is possible under sweeping constitutional aliens and immigration powers.

Post 9/11, Australian law has become increasingly exclusionary: it is harder to become a member of the Australian community, and easier to be expelled from it. Citizenship no longer guarantees protection against exclusion. This has brought two long-unanswered questions into focus. What are the limits of Parliament’s capacity to exclude people from Australia? And what does it mean to be Australian?

Citizenship and exclusion under the Australian Constitution

In contrast to many written constitutions, the Australian Constitution is silent on Australian citizenship. Leading up to Federation, the Constitution’s framers considered constitutionalising citizenship, and discussed complex questions about who to make a citizen, what rights to give them, and what role Parliament would play. Ultimately, unable to reach agreement on these things, they simply left citizenship out. The Constitution says nothing direct about what it means to be Australian, when a person is entitled to Australia’s protection, or who can claim to ‘belong’ to Australia.

While the framers could not agree on who belonged in the Australian constitutional community, they did express a clear and united desire to be able to comprehensively exclude people who were not of ‘British race’. To achieve this, they gave Parliament plenary legislative powers over ‘naturalisation and aliens’ and ‘immigration and emigration’. Due to these powers, any person who qualifies as an ‘alien’ or someone undergoing a process of ‘immigration’ can only enter the Australian community to the extent that Parliament allows. They may be granted full membership, or, conversely, excluded entirely for virtually any reason. One of the first actions of Australia’s first federal Parliament was to rely on these powers to pass a law that formed the basis for the White Australia Policy, which remained in place for over 50 years.

It is unsurprising, then, that the Constitution has been described as more concerned with exclusion than with inclusion. The White Australia Policy is no more, but the aliens and immigration powers provide an ongoing foundation for various exclusionary choices made by Australian parliaments. These include mandatory immigration detention for non-citizens who arrive without a visa, and laws enabling the deportation of both long-term permanent residents and people born in Australia who Parliament has excluded from citizenship.

Since 1949, Australia has defined citizenship through legislation. The Preamble to the current statute says that citizenship represents ‘full and formal membership of the Australian community’. By contrast, Australia’s key migration statute defines its object as ‘regulat[ing], in the national interest, the coming into, and presence in, Australia of non-citizens’. Together, these statements suggest that non-citizens, however long they have been in Australia, are not full members of the community until they obtain citizenship. Once they do, they pass beyond the reach of the aliens and immigration powers, gaining protection against exclusionary devices that rely on those powers for constitutional support. Historically, while most rights in Australia can be enjoyed without citizenship, a secure place in the Australian community has been one of its major benefits.

But the uncertainties that led the framers to leave citizenship out of the Constitution endure. The constitutional silence makes it unclear where comprehensive power to pass citizenship laws comes from. The High Court has confirmed that Parliament does have this power, but its foundations and scope have never been fully explained. Several questions persist. If Australian citizenship is merely a statutory creature, could it be repealed entirely? Can Parliament deny citizenship to anyone it chooses, or do some constitutional limits apply? Is there a class of ‘constitutional citizens’ from whom certain rights cannot be taken away?

Until recently, these significant questions have remained dormant. Litigation has led to repeated judicial affirmation that lawmakers have remained within the extremely wide boundaries of their power in this area. Case law confirms that Parliament may authorise the immigration detention and removal of ‘aliens’ ‘for whatever reason [it] thinks fit’. It also makes clear that, by defining Australian statutory citizenship, Parliament shapes the constitutional meaning of ‘alien’. This is delicate, because the constitutional meaning of alien simultaneously constrains Parliament’s legislative power. Judges have long acknowledged that an outer limit on Parliament’s power exists, but without a fact scenario demanding this limit be defined they have declined to define it. While Parliament (and the Executive, when exercising statutory authority) stays within its lane, courts will not measure that lane for us. For decades it seemed plausible that a case compelling courts to draw a line around Parliament’s exclusionary powers might never arise.

Legislation and policy since 9/11

Since the 9/11 terrorist attacks, Australian law and policy has lurched towards constitutional boundaries, in the name of national security. Before 9/11, Australia did not have a single national counter-terrorism law on its books. Now it is home to one of the world’s most expansive anti-terror regimes, with over 92 federal anti-terror laws, spanning over 5000 pages. These laws are broad-ranging, in some cases going further than emergency laws enacted during World Wars I and II.

When it comes to citizenship and migration, post-9/11 laws increase barriers to becoming part of the Australian community and reduce barriers to being ejected from it. There are three trends worth noting.

Trend 1: Securitisation and exclusion of ‘boat people’

In late August 2001, a Norwegian container ship, MV Tampa, rescued 433 asylum seekers from a sinking boat, and took them towards Christmas Island, the nearest port. The Australian government denied entry, ordered the military to board the boat, excised Christmas Island from Australia’s migration zone so that the passengers could not validly apply for asylum, and, in the midst of litigation, arranged for them to be sent to Nauru.

On September 11, the Tampa litigation was ongoing, and the government faced an upcoming election. In this climate, Defence Minister Peter Reith emphasised that ‘security and border protection go hand in hand’, and stressed the need to control the unauthorised arrival of boats carrying asylum seekers, which he said could be a ‘pipeline for terrorists’.

The government did not substantiate the link it drew between seeking asylum and terrorism. Recent research shows that no such link exists. But the association has endured, and has led to a plethora of laws and policies, often implemented under military leadership, which have blocked asylum seekers who arrive by sea from making protection claims in Australia. Many are prevented from reaching Australia by laws that provide for their transfer to ‘offshore processing’, or removal to other countries, and a military-led policy to turn back intercepted boats. Those who do arrive face mandatory immigration detention, and are statutorily barred from making visa applications. As a best-case scenario, this bar may be lifted, allowing them to apply for a temporary protection visa, which comes with limited rights, and must be reapplied for every 3-5 years.

These laws and policies reflect a political choice to comprehensively exclude a subset of vulnerable non-citizens, based on an unsubstantiated national security rationale, and in a way that contravenes Australia’s obligations under international human rights and refugee law. However, due to the very wide scope of the exclusion-oriented immigration and aliens powers, they rest on sold constitutional ground. This is underscored by unsuccessful constitutional challenges to the offshore processing regimes in both Papua New Guinea and Nauru.

Trend 2: Expanded visa cancellation powers

Since 9/11 it has also become easier for non-citizens, including long-term permanent residents, to be stripped of their visas on character or security grounds, and subsequently detained or removed from Australia.

For decades prior to 9/11, non-citizens have been vulnerable to visa cancellation and expulsion if found not to be of good character. After 9/11, however, these visa cancellation powers were increasingly invoked, especially against long-term residents.

In 2014, the statutory regime for visa cancellation on character grounds was significantly expanded to grant the Minister broad, imprecise powers that would enable visa cancellation on the basis of community protection, where any risk to the community is in fact very low. For instance, the Minister may cancel a person’s visa if satisfied that their presence may be a risk to the health, safety or good order of the Australian community or a segment of the Australian community’, or if they reasonably suspect that, on the basis of their conduct, the person is not of good character. Cancellation is mandatory on the basis of certain criminal activity, including relatively petty offending. For example, people have had visas mandatorily cancelled on the basis of dangerous driving after misunderstanding road rules, and misrepresenting used cars for sale. The Minister also has a personal power to override a delegate’s or tribunal’s decision that a visa should not be cancelled.

Following these changes, an average of 1000 people per year have had visas cancelled on character grounds – around a tenfold increase on prior numbers. The government has attempted to further lower the threshold for character-based visa cancellation, without success so far.

This regime raises several human rights and international law concerns. But once again, the aliens power, which was held to support laws authorising character-based visa cancellation in 1982,  provides a constitutional foundation for the current laws.

However, one significant exception has been recognised. Following the 2014 changes, a number of Aboriginal and Torres Strait Islander people who do not hold Australian citizenship have had visas cancelled on character grounds.

In a 2020 case, Love v Commonwealth, two Indigenous men whose visas were cancelled argued that, although the cancellation regime was supported by the aliens power, it did not extend to Indigenous non-citizens, as they are non-aliens. By the narrowest of majorities, the High Court agreed, recognising the first limit to date on Parliament’s capacity to control the constitutional meaning of ‘alien’ through the statutory parameters of citizenship.

Less than two years after this landmark decision, the Commonwealth is appealing to a differently composed High Court to have it overturned, making further clarification of the limits on Commonwealth power in this area likely in the near future.

Trend 3: The weakening of citizenship

Until recently, Australian citizenship was a highly secure status, revocable only in extremely limited circumstances. But in 2015, after a ‘lone wolf’ gunman falsely purporting to represent Islamic State held a number of people hostage in a Sydney cafe with fatal consequences, and following an increase in Australians travelling overseas to partake in foreign conflicts, Parliament introduced new citizenship stripping laws. Australian citizens aged 14 and over may be stripped of their Australian citizenship if they are convicted of certain terrorism-related offences or if the Minister for Home Affairs is satisfied that they engaged in specific terrorism-related conduct while in a foreign country. The Minister cannot strip someone of citizenship if they consider this would make the person stateless.

The Australian Citizenship Act describes these citizenship-stripping laws as Parliament’s recognition that citizens may, ‘through certain conduct incompatible with the shared values of the Australian community’, demonstrate that they have ‘repudiated their allegiance to Australia’. This is a clear attempt to invoke the constitutional support of the aliens power: several High Court judges have described constitutional alienage as