RE MIMIA; EX PARTE AME — THE CASE FOR A CONSTITUTIONAL AUSTRALIAN CITIZENSHIP

[This article discusses the recent High Court decision of Re MIMIA; Ex parte Ame, arguing that the case’s formulation of Australian citizenship — its nature and incidents — both challenges traditional notions of the term’s meaning, and compels an amendment to enact a constitutional status of Australian citizenship. After reviewing the case’s facts and the Court’s reasoning, historical expressions of the status shall be explored, before the Australian citizenship experience is itself examined. Applying the resultant insights to the case’s facts, it is argued that in light of the Court’s decision and the constitutional and legal landscape underpinning such authority, in particular the aliens power of s 51(xix) of the Australian Constitution, as well as on account of the advanced stage in the nation’s development, it is both necessary and apposite to amend the Australian Constitution to provide for an entrenched citizenship status.]


I INTRODUCTION
For most states, citizenship forms a key element in the institutional structure collectively known as government; over the course of history, the status has been an important guarantor of individual liberty, ensuring protection from the whim of government prerogative.Though the rise of human rights and other notions sculptured on universality has to some extent diminished citizenship's role, for most people it remains a significant ingredient in their status as free individuals.
Yet a recent decision of the High Court of Australia, Re MIMIA; Ex parte Ame, 2 reminds us that in Australia at least, this is not so.Concerned with the application of a Paul Martin has recently completed his undergraduate studies in law and political science, having spent a semester at the University of Virginia School of Law.He has recently returned from Washington, DC, where he was interning with the Rethinking Bretton Woods project at the Center of Concern: <www.coc.org/rbw>.The author would like to thank Professor Kim Rubenstein for enabling him to contribute research assistance towards the applicant's case; errors or omissions remain, of course, the author's own.This paper states the law as of 30 June 2006.
Papua New Guinean man claiming retention of his Australian citizenship in the face of the purported operation of legislative instruments providing for the independence of Papua New Guinea, in 1975, from administration by Australia, 3 the case explored the nature and characteristics of Australian citizenship in detail.
In deciding the case, the Court revealed its opinion as to the status' limited effect in Australian law: not only does citizenship, of itself, guarantee a right of abode, but also is it vulnerable to interference by the legislature to limit its practical utility. 4Australian citizenship, moreover, remains liable to repeal, neither containing a due process guarantee nor requiring the holder's involvement for the relationship between her/him and the state to be voided. 5These were consequences said to flow from its position as a statutory status.
Re MIMIA; Ex parte Ame thus leads us to re-evaluate citizenship in the Australian context.After examining the case and its reasoning, this paper will briefly survey the historical background in which citizenship has operated.Following such analysis, the citizenship experience and its function in Australia will be considered.Applying the resultant insights to the Court's reasoning, it will be suggested it is both apposite and necessary to enact a constitutional status of Australian citizenship.
Containing, at minimum, rights of abode and of franchise, such a status would serve to better protect Australians from their current vulnerability to governmental authority.As such, it would more accurately reflect the country's status as a modern, independent, democratic nation.

II RE MIMIA; EX PARTE AME A Facts
On 3 March 2005, a full bench of the High Court of Australia heard argument in the matter of Re MIMIA; Ex parte Ame. 6The plaintiff, Mr Amos Bode Ame, had brought proceedings against the Minister for Immigration, Multicultural and Indigenous Affairs seeking a declaration and writs of prohibition and mandamus. 7The Minister sought to remove the applicant from Australia pursuant to ss 189, 196 and 198  The case centred on the question of whether the applicant remained an Australian citizen.It was undisputed between the parties that the applicant, born in the Papuan highlands on 20 May 1967, originally possessed Australian citizenship. 9However, contention lay in the combined effect of the Papua New Guinea Independence Act 1975 (Cth); the Papua New Guinea Independence (Australian Citizenship) Regulations 1975 (Cth); and the Papua New Guinean Constitution, which together purported to transform the applicant and others like him into Papua New Guinean citizens. 10itial enquiry focused on reg 4 of the Papua New Guinea Independence Regulations 1975 (Cth), which provided that Australian citizens who became Papua New Guinean citizens on Independence Day by operation of the Papua New Guinean Constitution ceased to hold Australian citizenship. 11The Papua New Guinean Constitution relevantly specified that: 65. Automatic citizenship on Independence Day (1) A person born in the country before Independence Day who has two grand-parents who were born in the country … is a citizen.
(4) Subsection (1) … do[es] not apply to a person who -(a) has a right (whether revocable or not) to permanent residence in Australia; … (5) A person to whom Subsection (4) applies may, within the period of two months after Independence Day … in … such manner as … prescribed by … Parliament, renounce … his status as an Australian citizen … and make the Declaration of Loyalty. 12e applicant maintained that reg 4 did not apply to him on account of s 65(4)(a) of the Papua New Guinean Constitution. 13This was said to be activated by his Australian citizenship, which ipso facto provided a right of permanent residence in Australia. 14his contention was denied by the respondent, 15 who additionally pointed to prevailing migration law, 16 which required persons such as the applicant to obtain an 'entry permit' to enter (mainland) Australia. 1712 Constitution of the Independent State of Papua New Guinea s 65.In line with s 65(1), two of the applicant's grand-parents were 'born in the country'.The applicant failed to renounce his Australian citizenship in accordance with s 65(5).Subsequent concern rested with reg 4's validity.The applicant put that reg 4, in as much as it proposed executive alteration of an individual's fundamental rights and freedoms, was beyond the scope of regulations contemplated by s 6 of the Papua New Guinea Independence Act 1975 (Cth), 18 upon which reg 4 rested, given a lack of explicit intention in that provision to function thus. 19ternatively, it was argued that s 6, to the extent that it authorized reg 4, was itself invalid in that it proposed to unilaterally strip the applicant of his Australian citizenship and thus exceeded the powers conferred on Parliament by the Australian Constitution, most notably the aliens' power of s 51(xix). 20The respondent resisted each of these claims. 21

B The Court's Decision
The court unanimously found in favour of the respondent on 4 August 2005. 22The majority judgment was delivered by Gleeson CJ, McHugh, Gummow, Hayne, Callinan and Heydon JJ, 23 with Kirby J providing a separate, concurring opinion. 24 the majority's opinion, Australian citizenship did not carry an ipso facto right of permanent residence. 25More accurately, the meaning of s 65(4)(a) was not an abstract or theoretical question, but concerned practical reality. 26In this regard, extant migration law was decisive, notwithstanding its discriminatory or prejudicial effect on the applicant and fellow citizens similarly positioned. 27rby J took a comparable approach, additionally emphasizing the contemporaneous understanding of Australia's citizenship regime. 28In course of judgment, he cited a Ministerial response to a question concerning the citizenship rights of Papuans: We do not even give them the right to come to Australia.An Englishman who came to this country and complied with our electoral laws could exercise restricted rights as a British subject, whereas a native of Papua would be an Australian citizen but would not be capable of exercising rights of citizenship. 29 the event, he too found that reg 4 operated to deprive the applicant of his Australian citizenship. 30 regards reg 4's validity, the majority ignored the broad proposition advanced by the applicant, instead noting only that provisions relating to citizenship were clearly within the realm of potential regulations countenanced by s 6, given the context of its enactment. 31rby J, by contrast, was prepared to acknowledge the applicant's claims, but felt compelled to subordinate them to the concerns of the day. 32That is, he was persuaded by the relative frequency of similar legislative models in analogous colonial contexts, 33 and by the autochthonous foundation of PNG citizenship, which necessitated a diplomatic Australian response, effectuated by s 6 and reg 4. 34 His Honour further held that reg 4's limited ambit, in extinguishing few material rights of the applicant, justified both its form and its lack of explicitness. 35 to s 6's constitutionality, the majority founded their reasoning on the broad power of s 122 36  Australia and the territory's inhabitants that it saw fit. 37Any intrinsic limits to the reach of the s 51(xix) power did not act to defeat s 122's effectiveness. 38reover, s 6 could be supported by s 51(xix) itself: where a distinct, sovereign entity claiming ascendancy over a specified class of persons emerges out of territory externally acquired by way of s 122 -as occurred here -it is within power for Parliament to treat those persons as aliens, withdrawing their Australian citizenship. 39Kirby J's logic was similar.His Honour upheld s 6's validity on account of both s 122 and s 51(xix), for the reasons given above. 40He further noted, however, that because of its limited nature in practice, the applicant's citizenship did not preclude his coming within the scope of s 51(xix) before the commencement of s 6 and reg 4. 41 The character of the citizenship and the historical circumstances of the the freedom of movement of its citizens, in addition to its already existent power to regulate the entry and movement of aliens within the country. 47irdly, by adopting the chosen interpretation of reg 4 and by maintaining its validity, the Court disavowed the argument put by the applicant in oral hearing that the Court, in both constitutional and legislative interpretation, is constrained by an unqualified duty to proceed in a manner consistent with protection of a citizen's rights. 48Kirby J's assertion that the applicant was subject to the aliens' power from birth 49 may also be so classed.
Fourthly, in attesting s 6's constitutionality, the majority explicitly affirmed its position that citizenship is not a bilateral relationship, requiring involvement of the individual in any redefinition of the association between her/him and the state. 50fthly, and relatedly, the Court's validation of s 6 served to confirm that no universally applicable right of due process exists in the event of proposed legislative repeal of an individual's citizenship status. 51twithstanding the uniqueness of the applicant's case and the (dubious) assertion that the foregoing principles may be confined to instances of citizenship acquired pursuant to Commonwealth exercise of its external acquisition power, 52 the above provides cause for concern.Indeed, it is arguable any circumscription of the Court's findings to a limited class of individuals is in itself worrisome, establishing as it does a brand of second-class citizenship.
Re MIMIA; Ex parte Ame thus leads us to re-evaluate citizenship in the Australian context.In order to undertake such a venture fruitfully, it is necessary that the historical background in which citizenship has operated be considered.Such analysis will inform an understanding of the Australian experience and hence assist us to consider how Australians might be better protected from the vagaries of governmental authority.It was Ancient Greece where citizenship was established as the formal linkage between individual entitlement and full membership of the community. 54As a status of privilege conferred by the state upon an individual, Athenian citizenship was rooted in notions of commonality, freedom and civic identity, and hence emphasized duties more than rights. 55y incidents of such citizenship included rights to elect and stand for public office, and duties to pay taxes, to undertake military service, to serve on juries and to maintain law and order. 56Indeed, the right to vote was conceptualized as duty as much as right, for the essence of the civic republican model was a tight-knit, well-organized political community.To that end, citizen involvement in public affairs was seen as crucial to the ongoing health of the state. 57Thus the association between citizenship and democracy was formed.
Roman citizenship, like Athenian citizenship, was duty-oriented. 58Most notable was its use as an incentivized policy device; as a status of value, its bestowal was deliberately adopted by the Empire as a means of avoiding war and amassing territory and inhabitants. 59Detached from its traditional anchor of locality, citizenship thus became a tool by which to freely mould membership of the community.
With Rome's decline, and with the subsequent spread of monarchy across Europe however, the status retreated, not to fully re-emerge for several centuries.

B The Modern Roots of Citizenship
Entrenchment of monarchy led to a contraction of individual autonomy: the status of monarchical subject was characterized by widespread duties based on a 'personal, permanent and absolute' tie of allegiance owed to the sovereign, 60 and by a distinct lack of rights. 61In time, however, the mutuality of obligations between ruler and ruled was asserted and came to be accepted. 62 An extreme form of civic republican or duty-oriented citizenship, Rousseau's approach held that only by utter devotion to the state and repudiation of any pre-existing rights or bonds did the citizen manifest himself as such. 64Rousseau's citizens were both constitutive of and subordinate to the 'general will' of the state, by which their rights were guaranteed and liberty could be best preserved. 65 explicitly positing the citizen as the state's foundational unit, Rousseau firmly established the modern alliance between citizenship and nationhood. 66Though radically democratic, the implementation of his ideas in Revolutionary France and their ultimate perversity demonstrated citizenship's greater concern with nationalism than democracy. 67Future historical events confirmed and further strengthened this axiomatic linkage. 68 alternative understanding of citizenship arose in the natural law theory of Locke. 69sserting, like Rousseau, the social contract's popular nature, he differed in attesting the pre-political character of individual rights, which endured despite government. 70he liberal citizenship that emerged with the founding of the United States of America was accordingly marked by a coolness towards duties, focused instead on protecting rights from governmental interference. 71bedding such rights in a written constitution was one means of achieving this: the averral of a pre-political social space carried the implication that limits existed to sovereign authority.Hence constitutionalism, as the manifestation of this doctrine, began gaining popular currency from the American Revolution onwards. 72As the centre of the socio-political structure, the citizen was the primary beneficiary of such a theory, 73 and the citizenship-constitution link was thus forged.
The institution of republican government in the USA and France renewed and further annealed the historical association between citizenship and democracy.As the antithesis of monarchical rule, the locus of sovereignty was held to reside with the people; as the constituent unit of the polity, it was the citizen who was posited as the embodiment of democracy. 74Liberalism's spread was not confined to these two nations however, and across Europe, the legitimacy of monarchical rule was increasingly questioned.
In England, particularly, great strides had been made against the pretensions of absolutist rule.Freedom of conscience emerged from the religious disputations of the sixteenth and seventeenth centuries, with the resultant pluralism affirming freedom from royal prerogative, freedom from cruel and unusual punishment and freedom from a standing army, among others. 75These and the related rights of habeas corpus, equality before the law and due process formed the core of protections accorded to subjects and, in time, essential elements of liberal citizenship. 76rther liberties retained by British subjects integral to the liberal citizenship model included freedoms of speech, religion, movement and peaceable assembly, as well as the right to petition the sovereign. 77With limited rights of franchise, 78 subject status came to be functionally equivalent to, if theoretically distinct from, citizenship. 79However while citizens were generally able to source their rights in a written constitution, it was the common law that largely secured the freedoms of British subjects, 80 meaning their materiality depended chiefly on adherence to principles of responsible government.

C Citizenship's Modern Dominance
With time, the citizenship-nationality tie continued to strengthen, though the latter conveyed a different meaning from that admitted today; with the exception of politically mature, well-defined nations like Britain and France, 'nation' denoted a socio-cultural term as much as a political one when used vis-à-vis citizenship. 81With the broad emergence of the modern nation-state throughout the nineteenth century then, citizenship became a key aspect of nation-building and the politics of identity associated therein. 82deed, as a central tenet of 'the civil religion of modern society', 83 citizenship formed, as in Roman times, the 'membrane of social membership'. 84 through the process of social closure -in defining and specifying 'others', unity amongst those counted in the nation as citizens could be guaranteed. 85tizenship's actual content continued to wax and wane with the socio-political matters of the day and the historical traditions of the society in which they were debated. 86mportantly, extension of the franchise continued until viewed as a standard incident of citizenship, 87 and with crystallization of the nation-state structure, the right of abode became similarly classed. 88With the rise in influence of socialist thought, welfare benefits and affiliated concepts were judged by many also to be among citizenship's essential features. 89tizenship thus emerged as the locus around which transactions between the state and its constituent units were conducted.As the bond linking government with governed, the status became a solution to the problem of tacit coordination; that is, citizenship came to represent an accepted and well-understood bargain between actors, conferring benefits upon its holders on the one hand, and ensuring stability of the state on the other. 90This combination of utility and necessity assured both its moral and legal force and its ongoing place at the heart of civic life, as a status to be proud of and jealously protect. 91ough citizenship has now passed such a high-water mark, 92 it remains for most people the touchstone of their status as free individuals. 93In light of this, and of the Court's reasoning as expounded above, it is appropriate to turn to the citizenship experience in Australia.Such exploration will assist us to understand both the Court's decision, and how, in Australia, the status might be re-formulated to provide a more meaningful protection against governmental interference.

IV THE AUSTRALIAN EXPERIENCE
Australian citizenship is most notable for its absence from the Australian Constitution.
While constitutional authority to legislate with respect to citizenship clearly exists, 94  status itself is merely statutory, not constitutional.The explanation for this rests in the peculiarities of Australian history.

A Early Days
As members of the British Empire, the early colonists took immense pride in being British subjects.Indeed by the 1850s, with the Empire at its zenith, it was felt there existed no greater claim than that of serving the Queen, under God, with the appurtenant liberties and protections that the common law provided. 95To be British was to be civilized, that is, materially more advanced and thus culturally superior to all other races. 96 this environment, the idea of federating the six separate colonies emerged.Though not to occur for several decades, the concept was intuitively appealing as well as practically grounded. 97The need for a common immigration policy was particularly felt, as the influx of Chinese into Victoria and New South Wales, together with the importation of Kanaka labourers into Queensland, challenged traditional notions of the country as British. 98is sparked discussion as to what it was to be Australian.It meant, of course, being British, but did it mean anything else? 99 Thus the debate about and cultivation of a distinct national identity commenced, in turn highlighting two recurrent themes of Australian history: the unique malleability of Australian nationality, and the concern to consciously craft a state along utopian lines. 100rtainly, to be Australian was to be civically-oriented.It was to be loyal and lawabiding, with duties towards family and community; it was also to serve God and the British Empire. 101Though to furthermore enjoy the freedoms of a liberal society, it was not to be self-asserting; instead, the image of an active, if respectable, member of the public predominated. 102Most crucially, it was to be white.status in a governmental system crowned by monarchy, 104 many felt the need for a fulcrum of national identity greater than subject status. 105wever, pinning down what citizenship should entail proved difficult, in practicecommon usage of the tag did not mean agreement about its legal incidents. 106Firstly, it was unclear whether citizenship was merely a legal status; if so, who would be classed a citizen? 107Was the criterion to be the same as for subject status?Furthermore, if rights and responsibilities were to attach the status, which were to be enshrined? 108Moreover, what would such a regime imply for control of immigration? 109 For many delegates, the term was simply superfluous: as British subjects, Australians already had the assurances of the common law as guaranteed by Parliament. 110Not only would introducing such a status be fraught with unfamiliarity -in contrast to retention of the status quo -but in reserving its ultimate interpretation to the courts, such an arrangement would be to deny the efficacy both of responsible government and the underlying system of representative democracy. 111doubtedly, citizenship's republican connotations also troubled many delegates.Despite its association with the forging of Australian identity, Federation was not understood as challenging British sovereignty or the superiority of its institutions, 112 which formal legal citizenship arguably did.
Greatest concern, however, lay with the potential effect of citizenship on the ability to regulate immigration.Any restrictions on the project of making the nation 'a home for Australians and the British race alone' 113 were anathema; in particular, the fear of being forced to admit Hong Kong Chinese as British subjects (and hence citizens) loomed large. 114While several delegates were comfortable with a discrimination-based citizenship, others were not. 115 the event, unimpaired freedom to regulate aliens was seen as the best guarantor of a shared feeling of nationhood. 116 Indeed, such a framework served to infuse a notion of 'privilege' into membership of the Australian community, and establish an imbalanced relationship between the state and its constituent units; 120 without the equal platform of a constitutionally-entrenched status to defend oneself from, the legislature could aver itself supreme, drawing the boundaries for membership of the polity as it saw fit. 121t this was not wholly so, for an independent judiciary 122 and a written constitution testified to a belief in definitive limits to governmental authority.In fact, the hybridized, Anglo-American model of government that emerged from the Convention Debates explains much of the tension surrounding the subject; on the one hand, a strident belief in the imperial model of responsible government, on the other, a republican desire to fix the limits of such government in a superior written text, backed by impartial review of its terms. 123 is ironic then, that in a constitution devised by popularly-elected delegates and ratified by the people themselves, no categorical statement defining for whose benefit it was drafted appears. 124The Australian government was thus uniquely positioned to fashion national identity not around an inviolable rock of citizenship, but on an amorphous notion of alienage.It should be stressed this is not advanced as a threat actually perceived during Federation -at least as far as it could be used upon others than those deemed by all to be undesirables, such as Kanakas and Chinese -only that it existed as a logical corollary of the constitutional structure adopted.Such 'citizenship' as developed in the nation's early years then -for the term continued use, despite its absence from the formal legal landscape 125 -was in practice a collection of attributes by which the holder could not thus answer the description of either 'alien' or 'immigrant' as interpreted by the High Court. 126Prepared to assert power of a largely plenary nature, the Court hence affirmed a civically-oriented concept of community membership, loaded with explicitly racist overtones. 127The position of responsible government as the underwriter for liberty thus betrayed its first signs of unsteadiness.
Notably, the right of franchise was among the 'sacred cows' evidencing non-alien status. 128This can be explained by theorizing that no government acting responsibly would treat individuals upon whom its legitimacy was based as aliens. 129Hence, the disenfranchisement of certain classes simultaneously allowed to retain British subject status, 130 while further attesting the contingent nature of Australian freedoms, disclosed the centrality of the vote, more than subject status or 'citizenship', to Australian civic identity. 131e judiciary's use of 'citizenship' as a residuum 132 thus stationed it as a posterior status; that is, as resulting from membership of the community rather than guaranteeing it in the first instance.Indeed, it is arguable this conception persists and is visible in the Court's decision in Re MIMIA; Ex parte Ame. 133Thus, when citizenship finally entered the Australian legal lexicon in 1949, it found itself eclipsed not only by the aliens' power and by the vote, but also by an established extra-legal familiarity with the term.

Modern Australian Citizenship
The passage of the Nationality and Citizenship Act 1948 (Cth) signified a country growing in self-confidence.Yet the Act's designation of Australian citizenship as (merely) providing British subject status 134 tempered nationalist excitement, and indicated citizenship's retention as a culturally normative status.Indeed, its silence regarding the consequences of citizenship was noteworthy; it was instead left to individual pieces of legislation to discriminate on the basis of legal status. 135ostly, British subject status was the relevant threshold requirement. 136Indeed, the relative unimportance of citizenship in this regard perseveres; a survey by Rubenstein 137 shows the status material only vis-à-vis voting, 138 the holding of a passport, 139 and immunity from operation of the Migration Act 1958 (Cth). 140Even here citizenship is not decisive, as the ability of British subjects on the electoral roll before 26 January 1984 to continue to vote demonstrates. 141latively empty then, legally speaking, citizenship was promoted as conclusive evidence of full commitment to the Australian community. 142Heavily integrated with the assimilationist experiment of large-scale, non-Anglo-Saxon migration marking the 1950s and 60s, the status was cast as 'the ultimate achievement for newcomers'. 143ndeed, as a novel concept under Australian law, citizenship was throughout this period generally associated with naturalization. 144ee Control over eligibility remained strongly regulated however, 145 and thus citizenship as a privilege, promised by the nation's constitutional structure, was mirrored in statutory practice: citizenship announced membership of a club, carrying moral and legal weight equally. 146With the success of such a regime, and immigration more broadly, requirements were relaxed and the status given more stability, without its object being altered. 147As the British Empire declined, a nation gradually emerged from its shell; with the above-given exception, British subject status had disappeared from Australian law by 1987. 148tizenship endures in such guise today, resultant from and subordinate to the greater project of nation-building -as Dauvergne notes, migration law, not citizenship law, constitutes the biggest hurdle to full membership of the nation. 149The first Citizenship Minister was in fact only appointed in 2001, the portfolio's responsibilities having until that time been part of the Immigration Minister's activities. 150Though nation-building remains on-going, signs of increased self-assuredness and conviction regarding national identity continue to be manifested; a recent legislative amendment now allows eligible Australian-born citizens to hold dual citizenship. 151ving briefly surveyed the history of Australian citizenship then, it is appropriate to return to the paper's focus: the Court's decision and associated illumination of individual Australians' vulnerability to governmental authority.Applying the foregoing insights to the case's reasoning, it will be suggested reform to enact a constitutional status of citizenship is both apposite and necessary in light of the Court's decision.

Citizenship Devalued
Veritably, citizenship in Australia has had a 'slow, staggered, and disconnected legal evolution'. 152As discussed earlier, the status usually denotes formal membership of the community, carrying an associated array of freedoms or limitations on governmental authority with it, foremost of which -but not exhaustive of -today are the right to reside in the community (the right of abode) and the right to shape its direction (the right of franchise).In this way, citizenship ensures the integrity of the community and its administration, as well as providing that of the community members themselves.However, far from being the site around which the government-governed relationship has been based, citizenship has been the forgotten poorer cousin of Australian constitutional law: not only is it a contingent or statutory status, but it confers few rights upon its holders.This is not to say that Australian law, in both its common law and statutory forms, provides insufficient liberties or restrictions upon governmental authority, but these are generally impugnable or not beyond attack, as recent legislation suggests. 153The result then, is a gap between citizenship as a formal status and as an active, actual membership of the community. 154is is clearly seen in the Court's decision.Despite the proposition's apparent absurdity, it was held the applicant's citizenship was hollow at law, owing to its lack of substantive rights and immunities. 155That is, its practical attributes were allowed to circumscribe its legal operation, and not the reverse.In fact, citizenship was cast in such purely administrative terms that even a definitionally inseparable concept such as the right of abode was unable to be imputed in light of contravening executive practice and in the absence of explicit textual support. 156ch absurdity is mitigated by its constitutional underpinnings however; the immigration, aliens and territories powers have long been drawn as government trumps, able to justify a large range of legislative measures. 157Thus the applicant's citizenship could be rendered meaningless: unable to guarantee residence, unable to guarantee freedom of movement and unable to assure immunity from the fickleness of government whim.
Aside from affirming full legal citizenship as a culturally normative status, the Court's decision, in averring the capacity of citizenship's appurtenances to determine its ultimate legal force, is notable for supporting a legislative ability to 'deal citizens … in and out of the legislative pack' 158 and thus the national polity: the want of practical utility attending the applicant's citizenship flowed not from the source Australian Citizenship Act 1948 (Cth), but from legislative provisions building on such a status. 159he Court hence implicitly upheld a capability to indirectly deprive an individual of her/his citizenship status. 160e applicant's situation, of course, was the obverse of that encountered in the British subject cases. 161Here, the question arose of whether long-term British residents in Australia, electing not to take up Australian citizenship despite legislative amendments removing the status of 'British subject' from the Australian Citizenship Act 1948 (Cth), could fall within the aliens power.After prolonged wrangling, the Court has resolved they may, 162 despite the absorption and full membership of such individuals in the Australian community.
Taken collectively then, neither formal citizenship nor substantive community membership alone assures citizenship in the sense of being beyond the aliens' power.Given this, and ongoing uncertainty associated with potentially protective constitutional phrases like 'the people of the Commonwealth', 163 it is discomforting to know individual liberty rests somewhat upon the goodwill of a (ir)responsible legislature.Indeed, it is at variance with the country's status as a modern, independent, democratic nation.The Constitution refers, in the Preamble, to the 'people' of the respective States agreeing to 'unite in one indissoluble Federal Commonwealth'.This, together with references to the 'people of the State' and the 'people of the Commonwealth' in ss 7 and 24 respectively -which collectively provide for a system of representative democracy by establishing the methods for electing the Senate and the House of Representatives respectively -as well as reference to the method for qualification of such electors (ss 8 and 30), has been held by some to provide a broad constitutional guarantee of franchise, and as such, a broad guarantee of membership of the Australian body politic, unable to be deprived by the legislature, at least in the absence of extraordinary circumstances.The concept is not well developed in law, though there is arguably some authority for the proposition: see The key feature of the Court's decision is its expansion of the aliens' power.Prior to the Court's judgment and that handed down in Singh v The Commonwealth 164 ('Singh') a year earlier, it was settled law that the statutory status of citizen was coincident with the constitutional status of non-alien. 165Yet Singh's holding that alienage connoted the owing of allegiance to a foreign sovereign 166 laid the ground for an enlarged reading of the power, attained in the Court's holding that formal citizenship does not prohibit such an individual being classed an alien. 167ile the Court's remarks in Re MIMIA; Ex parte Ame regarding the reach of the aliens power are ultimately constrained by the case's facts, and by the repeated emphasis on the territories power more than the aliens power as a tool of de-citizenship, the Court's opinion was novel in that the applicant, unlike previous parties before the Court in allied circumstances, had never held other than Australian citizenship. 168As Prince notes, the case raises questions as to the status of Australians holding dual nationality; 169 this appears to be so, whether the individual's citizenship is by birth or by naturalization.
Indeed, more than 100 years after its inception, the aliens' power has now reached a new, disturbing zenith.Despite judicial mutterings that its application is not infinite and that the term cannot be defined as broadly or distortedly as Parliament wishes, 170 several justices do not seem as willing to constrain the legislature. 171Moreover, assurances that the aliens power could not be used to deprive the citizenship of individuals with claims 'stronger in law and fact' 172 than the applicant may be regarded as hollow; in light of the foregoing analysis and given the bond in Australia between the right of franchise and the constitutional status of non-alien, dual citizens ineligible to vote 173 may at the least adjudge their citizenship as more susceptible to annulment than that of the remainder of the Australian community.
The above demonstrates that truly, Australian citizenship has been devalued.With the continued deportation of individuals having spent nearly their entire life in Australia, 174 citizens 'in all but law', 175 and with government threats to strip dual nationals of their Australian citizenship if convicted of terrorist offences 176 -some of which contain worrying levels of ambiguity in their drafting 177 -it is not alarmist to assert alternatives to the current arrangement need be considered.

B The Case For Reform
McHugh J reflected in Singh that he found it difficult to designate a natural-born subject of the Queen an 'alien' for constitutional purposes. 178The dissentient nature of his comments shows how much things have changed; as noted above, one reason for excluding citizenship from the Australian Constitution was the protection Australians retained as common law subjects.The foregoing discussion indicates that the system of responsible government upon which the worth of such a status was predicated has failed, at least in the Australian context.
One reason for this might be the existence of the Australian Constitution itself.It was suggested above there exists inherent tension between the notions of constitutionalism and of responsible government -it may well be that in a battle between the two, it is natural for the former to prevail.That is to say, where expansive powers exist under a written document, these will generally overwhelm the connate protections of a historically-bound system of restraint.Certainly, governments are not usually averse to affirming an expanded understanding of their abilities. 179deed, such a description fits the foregoing characterization of the two theories; responsible government as avowing unabridged sovereignty, limited only to the extent that it is divided between actors, constitutionalism as averring a pre-political social space. 180In a constitution like Australia's then, containing virtually no assurances of individual liberty, 181 this pre-political space is small; it makes sense that government Even admitting the influence of Lockean thought on the development of common law freedoms and liberties, it is possible to argue the above given the historical context of absolute, unabridged dominion underpinning the theoretical relationship between monarch and subject.While practically speaking, such a connection no longer abides, the self-same structure endures; hence, it may be asserted that while the balance of rights and obligations between monarch and subject has altered, their sum total subsists at the same (greatly expansive) level as before: see discussion above at Part III.B and the texts there referred to. 181 The freedoms explicitly provided by the Constitution are contained in ss 41, 51(xxxi), 80, 116 and 117.Largely, though not in all instances, these have been construed so as to provide hollow protection, such as s 41's guarantee that ' would thus seek to enlarge its domain under the rubric of responsible government, using the Australian Constitution itself as the legitimating leverage.
While the adoption of responsible government as the leitmotif of Australian constitutional structure was a wholly natural consequence of Federation, it was misplaced in as far as it asserted the pertinence of the system's historical underpinnings to Australian society.Australia's history, however, was nothing like that of Englandnever were there despotic monarchs to be resisted, never were there undiscovered freedoms to claim and fight for; by contrast, the narrative was a rather pedestrian one, laced only with xenophobic mistrust. 182us, without historical imperative to act as a brake on government, a constitution like Australia's with its reliance on the common law was destined to prove a poor substitute.It might have been supposed that in fact, government itself needed controlling, lest it ordain itself emperor.This holds despite the peaceful nature of Australian independence; the American Revolution's violence only made it plainer that governments were to be equally as feared as monarchs.
Yet the Framers weightily supposed that being in control of government from the outset, they would be able to stamp their authority and vision on the system forever, ensuring it would not deviate from their ideals. 183Power, however, is a remarkably slippery thing; while the racism colouring the nation's birth has faded (though not disappeared), 184 the aliens power remains as virile as ever, as this paper has demonstrated.Thus the nation retains only a definitive, all-pervasive capacity to exclude, lacking an equivalent inclusive capability.

C A Constitutional Citizenship
The disease being constitutional, so must be the solution.While Australian identity has proved remarkably pliable, from the days of the White Australia Policy, 185 through assimilation 186 and integration 187 to the multiculturalism we embrace today, 188  The prevailing immigration policy throughout the 1950s and the early part of the 1960s, assimilation's emphasis was on discouraging ethnic expression, instead stressing cultural homogeneity: see Jordens, above n 144, 147-52.
to ensure a stability commensurate to the distinctiveness of our nationality.This can be achieved through reform to enact a constitutional status of citizenship.
Such a status need only be as strong as the threat faced from other parts of the Australian Constitution; thus, for example, it would not be necessary to attach freedom of religion to any potential citizenship. 189In this respect, it should be stressed that rights of entry, of residence and of protection from deportation are vitally important and as such, should be explicitly established in the form of a right of abode. 190Indeed, in an era where the domestic law term 'citizenship' corresponds with the international law term 'nationality ', 191 there is probably no more fundamental element of citizenship than the right of abode.
Though citizenship's concern with nationality remains unmatched, its affiliation with democracy runs a close second.As noted above, states built upon the will of their constituent units have been deeply associated with citizenship, and thus it is apposite for any such constitutional status to reflect this notion.Such a provision should be crafted so as to complement the system of representative democracy established by ss 7 and 24 of the Australian Constitution; 192 one possible alternative appears in the Appendix at the end of this paper. 193deed, welding citizenship to the right to vote is, in the Australian context, crucial.As previously suggested, the right of franchise has long been conceived as more central to civic identity than citizenship itself, as the abovementioned example of indigenous Australians illustrates. 194The unanimity of the Re MIMIA; Ex parte Ame verdict, 195 contrast to the split of opinion surrounding the British subject cases, 196 merely provides further support for this thesis. 197ch an arrangement would elevate the worth of citizenship in the public mind.This in turn might lead to a more assertive polity; as earlier intimated, the evolution of national identity has reached a point where a relationship of privilege between the government and its people just cannot abide. 198Though as an institution Parliament possesses a proud history of championing the liberty of individuals, the discussion above illustrates that in Australia it has betrayed that legacy in context of citizenship.
In a modern, independent, democratic state like Australia, prosperous and free, it is incongruous that the very individuals responsible for creating such an environment do not have an inviolable stake in it.Thus, far from removing control of citizenship from a democratically elected Parliament, providing for a constitutional status of citizenship can be seen as relocating the status to more fortified surrounds where it will better serve the interests of those for whom it exists.
Added motivations arise for enacting citizenship as a constitutional status.As many works have documented, 199 Australia has grown from a colonial outpost based on crude ideas of eugenics to a nation-state teeming peacefully with a variety of ethnicities.The success of the Australian experiment is somewhat remarkable, especially when compared with other nations' experiences, 200 and the societal celebration of diversity, combined with legislative traits like the ability to hold dual citizenship, speaks of maturity and self-assuredness vis-à-vis national identity.
It is apposite that this be reflected in the Australian Constitution itself then, the actual and symbolic contract between government and governed.Indeed, such a move would serve to affirm the success of the Australian experience, act as a renewal of vows and acknowledge the sincerity of the bond between the state and its constituent units.Such ends may be advanced as particularly invaluable given the arguable emergence in recent times in Australia of a rising antipathy towards multiculturalism. 201e criterion appropriate for circumscribing citizenship is a separate issue from that of its content.It should be noted that two main strands exist within the citizenship tradition: jus soli (citizenship by birth) and jus sanguinis (citizenship by descent). 202he Australian regime retains elements of each, with birthright citizenship more pivotal and restrictions operating on both. 203As discussed above, citizenship can also be acquired by naturalization, subject to fulfilment of the prescribed criteria as adjudged by the Minister; these include maintenance of permanent residency status for at least two years and possession of a basic knowledge of English. 204 reason exists to believe the current regime lacks efficacy or is inappropriately adapted in terms of policy focus.It needs remembering, moreover, that it is indeed migration law and not citizenship law which is the nation's true shaping device; the current concern is simply to cement and affirm the status of those already members of the community, not to impinge upon a rightly separate function.As such, the criteria regulating the operation of citizenship by birth and by descent should be incorporated into the Australian Constitution in their present form, modified only to ensure harmony with relevant naturalization provisions. 205 regards citizenship by grant -naturalization -its non-automatic character raises difficulty as to the form in which it should appear in the Australian Constitution.
democratic state on a permanent basis would be recognized as community members, entitled to full political and social membership within that group. 207ch a scheme presents as attractive, given the phenomenon of mass migration and the politicization of citizenship, as an aspect of community membership, attendant to this trend. 208As such, citizenship by naturalization should be incorporated into the Australian Constitution so as to operate in a self-executing manner after a qualifying permanent residency period; five years would seem appropriate, given the current combination of a two-year waiting period balanced with Ministerial discretion. 209etention of the English language requirement is desirable to ensure commonality at the heart of the citizenship bargain. 210e current regime's exceptions and qualifications 211 would have to be significantly rationalized to be incorporated into the Australian Constitution.While consolidation is one means to achieve this, it is preferable to allow those currently eligible to apply for citizenship to remain so under the altered scheme, to license Parliament to waive eligibility criteria where it deems appropriate, and to permit debarment to be prescribed similarly, subject to a core standard sufficiently tight to prevent bad faith legislative exploitation; allowing parliamentary interference only where those to be deemed ineligible have committed acts inimical to the interests of the Australian community is an apposite yardstick. 212 should be noted that a full-scale bill of rights is not being advanced. 213As suggested above, constitutional citizenship need only be as strong as is necessary to offset aspects of the Australian Constitution which impinge on individual liberty.It is important that constitutional citizenship not replicate its common law and statutory relations in either allowing a space to emerge or providing a focal point for exclusionism; the above proposal acknowledges this by creating a citizenship that is robust, yet narrow in its entitlements and broad in its accessibility.
Given the Court's decision, it is necessary to include a clause to guarantee freedom of movement. 214What other features should also be definitely attached is beyond the immediate scope of this paper.While argument certainly exists to support incorporation of traditional common law rights into any amended regime, the considerations underlined in the preceding paragraph suggest the citizenship proposal advanced in this paper is adequate to address the issues discussed above.
Given the popular nature of the proposed amendment, reason exists to believe that despite the poor strike rate attached to constitutional referenda in Australia, such an alteration to the Australian Constitution could be passed.As guarantor of the people's interests then, the Australian government should earnestly proceed to introduce legislation consonant with the above proposal.A representation of what this might look like appears in the Appendix at the end of this paper.

VI CONCLUSION
It is unlikely, however, that such a course of action will be pursued.Since coming to office in 1996, the Howard government has displayed a consistent disregard for the legally entrenched rights and freedoms of individuals. 215Under its watch, centuries old liberties have been wound back, and the status of Australians made less secure, as this paper has demonstrated.
Re MIMIA; Ex parte Ame forms part of this trend.While the decision itself is perhaps beyond criticism, the reasoning employed by the Court certainly cannot be so classed; Australian citizenship was formulated in such purely administrative terms so as to be meaningless -the Court felt unable to attach to it a right of abode, a right to not have the status repealed by executive order, or a right to due process in the event of proposed repeal.
Such a conception of citizenship is at clear odds with historical expressions of the status.While the civic republican model differs from its liberal counterpart in emphasising the primacy and unity of the state over the autonomy and ultimately, the inviolability, of the individual, neither mandates the imbalanced and unequal relationship characterizing Australian citizenship.
The reasons for Australian citizenship being so constituted are largely historical.
Building the country from a background of racial superiority, the Framers were concerned to maintain such a project's impetus.It was felt constitutional citizenship would impinge upon this, and a plenary power to regulate aliens, when considered with the liberties Australians retained as common law subjects, was agreed a more effective means to national unity.When the term did enter the legal landscape in 1949, in shall hold Australian citizenship if: (a) the name of the relevant person is registered for the purposes of this subsection at an Australian consulate, and the registration is the result of an application made within 25 years of the person's birth to register the person's name for those purposes; and (b) a person, being a parent of the relevant person at the time of the birth of the relevant person: (i) held at that time Australian citizenship, acquired otherwise than by descent; or (ii) held: (A) at that time Australian citizenship, acquired by descent; and (B) at any time before the registration of the name of the relevant person, including a time before the birth of the relevant person, was present in Australia, otherwise than as a prohibited immigrant, as a prohibited non-citizen, as an illegal entrant, as an unlawful non-citizen, or in contravention of a law of a prescribed Territory, as deemed by Parliament, for a period of, or for periods amounting in the aggregate to, not less than two years.(6) A person, not holding Australian citizenship, who: (a) has been ordinarily resident in Australia for a continuous period of five years or more while a permanent resident; and (b) possesses a basic knowledge of the English language; shall hold Australian citizenship.(7) Any person holding Australian citizenship or eligible to apply for Australian citizenship immediately before the commencement of this section shall, under this section, continue to hold Australian citizenship or be eligible to apply for Australian citizenship after its commencement.(8) Australian citizenship shall possess as a characteristic a non-derogable right of abode.(9) Australian citizenship shall possess as a characteristic a non-derogable right to vote for the Senate and for the House of Representatives of the Parliament of the Commonwealth, subject only to the requirement that the citizenship holder be of the age of 18 years or older on the day the election is to occur.(10) The foregoing rights of Australian citizenship are not to be interpreted as exhaustive of or in derogation of other citizenship rights elsewhere established in this Constitution; all such rights are to be construed without prejudice as to residency status in either State or Territory.(11) Parliament may make laws expanding, but not diminishing, the class of persons holding Australian citizenship.(12) Parliament may make laws concerning the ineligibility of persons to obtain Australian citizenship, where such laws concern acts committed by those to be deemed ineligible and the acts concerned are inimical to the interests of the Australian community.

1
Re MIMIA; Ex parte Ame [2005] HCA 36 (Unreported, Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ, 4 August 2005).* Independence (Australian Citizenship) Regulations 1975 (Cth) reg 4 states: 'A person who-(a) immediately before Independence Day, was an Australian citizen within the meaning of the Act; and (b) on Independence Day becomes a citizen of the Independent State of Papua New Guinea by virtue of the provisions of the Constitution of the Independent State of Papua New Guinea, ceases on that day to be an Australian citizen'.

153See
Anti-Terrorism Act (No. 2) 2005 (Cth) sch 7, which expands the definition of sedition and arguably impinges upon freedom of speech.See also Law Council of Australia, 'Summary Comment on the Anti-Terrorism Bill (No. 2) 2005' (Press Release, 14 November 2005).
[n]o adult person who has or acquires a right to vote at elections for the more numerous House of the Parliament of a State shall, while the right continues, be prevented by any law of the Commonwealth from voting at elections for either House of the Parliament of the Commonwealth', which has been read to guarantee only those voting rights that existed prior to Federation, before Commonwealth Parliament provided for uniform federal franchise in 1902: see R v Pearson; Ex parte Sipka (1983) 152 CLR 254.Additionally, the High Court has ruled that the Constitution contains a number of implied constitutional freedoms, such as a MARTIN (2006)

214See
Appendix para (10).As drafted, this provision would protect freedom of movement as established elsewhere in the Constitution (see Re MIMIA; Ex parte Ame [2005] HCA 36 (Unreported, Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ, 4 August 2005)[21]-[22], [32]), as well as other, similar rights (see above n 183), while at the same time adhering to the principle enunciated above of installing a citizenship only as strong as is necessary to offset aspects of the Constitution which impinge on individual liberty.Relatedly, s 116 of the Constitution should be amended so as to provide that the rights contained therein apply to holders of Australian citizenship, and s 34(ii) of the Constitution should be repealed and replaced with text requiring that potential members hold Australian citizenship.
the opinion of Mr William Trenwith: see Rubenstein, above n 94, 29.At common law, people born within the monarch's dominions became, by virtue of their birth, British subjects, enjoying the liberties and protections discussed above: see above nn 76-81 and accompanying text.Constitution faded, overshadowed by specific powers to legislate with respect to aliens, 117 immigration,118and relations with the islands of the Pacific.119CAnInfant NationA nation half-sure of itself thus stole into the dawn of the twentieth century.The decision to omit citizenship from the Australian Constitution indicated a country more confident of what it wasn't than what it positively was; by instead emphasizing the power to exclude, the pattern of defining Australia from the outside in found footing in the deepest channels of governmental structure.
The idea of inserting citizenship into the Australian 104 Citizenship generally having republican and thus anti-monarchical connotations: see Irving, above n 96, 158.105 Ibid 157.Chief among them were Dr John Quick, The Hon Richard O'Connor, The Hon Isaac Isaacs and The Right Hon Charles Kingston: see ibid 158-9.106 Ibid 157.107 Rubenstein, above n 94, 29.108 Ibid.109 See Irving, above n 96, 158-9.110 This indeed was 112 See W J Hudson and M P Sharp, Australian Independence (Melbourne University Press, 1988) 26-8.113 The Hon James Howe, cited in Rubenstein, above n 94, 37. 114 Rubenstein, above n 94, 36-7.115 Among those comfortable with the concept was Dr John Quick.Delegates opposing this group included Mr Henry Higgins and Mr Josiah Symon: see ibid 37. MARTIN (2006) The Constitution of the Commonwealth of Australia (Butterworths, 3 rd ed, 1981) 184; see also J Quick and R Garran, The Annotated Constitution of the Australian Commonwealth (Legal Books, 1976) 637-8.Also notable was the power granted to Commonwealth Parliament under s 51(xxvi) to legislate with respect to 'the people of any race … for whom it is deemed necessary to make special laws'.The purpose of this power has generally been held to relate to the 'influx' of Kanaka labourers to the Queensland sugar cane industry: see n 99 and Lumb and Ryan at 170-1.
117 See Constitution s 51(xix).118 See Constitution s 51(xxvii).119 See Constitution s 51(xxx).This head of power was included out of fear that the status of some Pacific Islands as British possessions (such as Fiji) might preclude Commonwealth Parliament's ability to enact relevant legislation under the external affairs power of s 51(xxix): see R D Lumb and K W Ryan, It should be noted the right of franchise contemplated in the Appendix is non-derogable, subject only to the requirement that the citizenship holder be of the age of 18 years or older on the day the election is to occur, contrary to the provisions of s 93(8) of the Commonwealth Electoral Act 1918 (Cth), which prevent those incapable of understanding the nature and significance of enrolment and voting by reason of being of unsound mind, those serving a sentence of three years or longer for an offence against a law of the Commonwealth or of a State or Territory, and those convicted of treason or treachery who have not been pardoned, from voting.The contemplated provision further runs counter to ss 94-95 of the Commonwealth Electoral Act 1918 (Cth), which provide, inter alia, for the ineligibility to vote of those enrolled and those eligible to be enrolled to vote where such persons have resided outside of Australia for more than six years continuously.Although arguably controversial, such a provision is entirely appropriate given the professed inclusive rationale underlying the proposed citizenship regime.It should be noted that the proposed amendment does not prevent the right of franchise being possessed by British subjects on the electoral roll before 26 January 1984, or indeed by other classes deemed worthy of possession by Parliament.
194 See Rubenstein, above n 94, 29, 43, 53; Shaw v Minister for Immigration & Multicultural Affairs (2003) 218 CLR 28, 45, 48, 72, 87; Re Patterson; Ex parte Taylor (2001) 207 CLR 391, 398, 413, 437, 475, 507, 518; Nolan v Minister for Immigration & Ethnic Affairs (1988) 165 CLR 178, 186, MARTIN Relevant to this is a noteworthy proposal advanced by Rubio-Marin, who argues citizenship outmoded and length of residency more relevant in determining who constitutes the community.206Underher proposal, all those living in a liberal Citizenship does not actually take effect until the certificate of Australian citizenship has been issued and a pledge of commitment has been made in the manner provided by the Act: see Citizenship Act 1948 (Cth) s 15(1)(a).Citizenship may also be acquired by adoption, where a permanent resident, while in Australia, is adopted under State or Territory law by an Australian citizen or jointly by two persons, at least one of whom is an Australian citizen: 201See, eg, n 186 above; M Baume, 'Social fabric frays at seam', Australian Financial Review (Melbourne), 30 October 2006, 62.202Historically, the former was favoured in the United Kingdom and throughout the British Empire (see above n 111), as well as in the United States and many Latin American countries.By contrast, the latter was the norm in Prussia, Austria-Hungary and other European states, emphasizing patrimonial lineage.For further discussion, see above Part III.C and Heater, above n 54.203 See Citizenship Act 1948 (Cth) ss 10, 10B, 10C, 11. 204 Citizenship Act 1948 (Cth) ss 13, 15.A Bill before Parliament would, if passed, amend this two-year period: see Citizenship Act 1948 (Cth) ss 205 That is, the time period listed in s 10(2)(b) of the Citizenship Act 1948 (Cth) should be altered from 10 years to five years: see Citizenship Act 1948 (Cth) s 10(2)(b), Appendix paras (3)(b), (6), Citizenship Act 1948 (Cth) ss 10(3)-(5), 10B(1A)-(4), 10C, 11, 13(1A)-(17), 14A-14C, 18-23B.The criteria governing citizenship by adoption should be similarly incorporated into the Constitution: see Appendix paras (3)-(5).206R Rubio-Marin, Immigration as a Democratic Challenge: Citizenship and Inclusion in Germany and the United States (Cambridge University Press, 2000).MARTIN