Abstract

Excerpted From: Catherine Zhou, The Racialisation of Constitutional Alienage, 47 Melbourne University Law Review 723 (2024) (325 Footnotes) (Full Document)

The decision in Love v Commonwealth ('Love’) exposed a rift in the High Court of Australia's characterisation of the aliens power. While the minority found that the power was tied to statutory citizenship, the majority characterised alienage by reference to its ordinary understanding. The aliens power remains unmoored, lacking a coherent characterisation and positive definitional content. With changes to the composition of the High Court and the discontinuation of an appeal to overturn Love, these questions remain unanswered. In Alexander v Minister for Home Affairs ('Alexander’), this ongoing obscurity led Edelman J to declare that a series of decisions of the High Court has seen 'an imperial march of the application of the aliens power ... capturing more and more members of the permanent population of the Commonwealth of Australia’. The indeterminacy of constitutional alienage is particularly troubling given the expansive terms in which the aliens power is expressed: it permits laws that are 'benevolent or repressive’, or 'directed to any aspect of human activity’, even if they contravene international law. As such, Parliament is entitled to 'enact special, discriminatory laws' about aliens, and preclude their access to the implied freedom of political communication or to constitutional protections against 'lengthy executive detention’.

The aliens power now sustains increasingly significant concepts and legislation. Critically, s 51(xix) is the head of power which supports statutory citizenship. While the Australian Constitution does not explicitly grant the Commonwealth a power over citizenship, it is now a 'settled position’ that s 51(xix) empowers Parliament 'to create and define the concept of Australian citizenship’. As such, s 51(xix) is as much a source of regulation over statutory citizenship as it is over alienage. Before Love, the High Court held that the relationship between citizenship and alienage was dichotomous: 'alien’ was seen as synonymous with “non-citizen'. 'Alienage’ has also been defined as the antonym of belonging and membership of the community, but both definitions were qualified by reference to citizenship. Accordingly, alienage has historically been subject to statutory control rather than substantive modes of belonging or community membership. In contrast, Love opens up the possibility of an intermediate category: the 'non-citizen non-alien’. The recognition of this category affirms that alienage is a constitutional concept, diverging from the statutory contingency which has previously characterised its interpretation. These emerging tensions have destabilised the relationships between citizenship and non-citizenship, alienage and non-alienage, and belonging and community membership.

The concept of alienage is further problematised by the fact that it has both legal and sociological dimensions. Its language intrinsically calls attention to the 'otherness' of its subject, 'invok[ing] a racially, ethnically, and culturally specific image of the immigrant/foreigner’. This 'alien spectre’ is constructed and represented by circulating discourses, and marked with historical meaning. Critical race theorists in the United States have accordingly challenged the dichotomy between alienage and race, highlighting the unstable boundaries between legal and social dimensions of meaning. In Australia, however, the High Court has largely refused to critically engage with the racial origins of the aliens power, dismissing race as irrelevant to the task of construction.

This article refutes the High Court's habitual dismissal of race in characterisations of constitutional alienage. It argues that the answer to resolving the competing perspectives of the High Court in Love rests on the critical recognition of race as a legitimated and institutionalised aspect of alienage both before and after Federation. Race is enmeshed in the Australian Constitution. It is a head of power in s 51(xxvi) of the Australian Constitution that enables the Commonwealth to make laws with respect to '[t]he people of any race for whom it is deemed necessary to make special laws' -- a power with which the aliens power is inextricably interlinked. It is also a sociological force connected to the creation of s 51(xix) of the Australian Constitution -- with racially exclusionary desires motivating the introduction of the aliens power. Through this history, race indelibly suffuses the meaning of the aliens power and prevents it from being read in an entirely formalist or colourblind capacity, or equated to non-citizenship. Constitutional characterisation must therefore follow from a reckoning with race and not an ignorance of its influence.

This article is organised into three main parts. Part II recasts the history of the aliens power with two primary objectives. First, it seeks to prove that the racialisation of 'alien’ before and after Federation transcended the subjectivity of the framers, becoming institutionalised within the interpretation and application of the aliens power. Second, it argues that the High Court has turned to a more legalistic and formalist conception of the aliens power, without ever explicitly confronting its racial history. Part III outlines current divisions in the constitutional characterisation of the aliens power, as expressed in Love and affirmed in subsequent decisions. It then challenges the justifications for characterising the aliens power as a juristic classification by reference to its racial origins. Part IV concludes that reckoning with the racial history of the aliens power can anchor alienage to a more expansive conception of community, using a comparison to the legal definition of race to illustrate the ways in which changing societal attitudes have directly affected the characterisation and application of the Australian Constitution. Inherent in this reckoning is the imperative to account for self-identification and communal recognition in demarcating the boundaries of belonging.

[. . .]

Since Pochi, the aliens power has often been conceptualised as a contingency, defined only by reference to citizenship. As Love demonstrated, that definition is fundamentally unsustainable and is unable to accommodate realities of community membership that exist beyond the confines of statute.

A survey of the history of the Australian Constitution reveals that race was embedded into early conceptions of alienage. Contrary to the High Court's dismissals of its relevance, that fact underpinned understandings of alienage prior to Federation and subsisted throughout interpretations of alienage by courts and legislatures. The subsequent entrenchment of an alienage defined by citizenship has perversely created discriminatory conditions in which preserving the formalism and neutrality of alienage has come at the expense of the necessary recognition of difference that Gaudron J called for in Street.

Recognition of race evidences that the aliens power was never anchored to British subjecthood at Federation, and continues to exist independently of formalist conceptions of political community. The coexistence of race and subjecthood in the history of the aliens power demands a higher and more transcendent understanding of constitutional alienage, capable of encompassing each of its institutionalised applications. That necessitates the understanding that both race and subjecthood were seen as subsidiary criteria to adjudge a broader sense of political community or membership of the body politic, in accordance with the framework propagated by Gaudron J in Nolan. A comparison to legal definitions of race also shows how adopting this approach to characterising the aliens power enables a greater role for self-identification and communal recognition in the evolution of the power. As such, the racial history of the aliens power does not mean that the High Court is tied to racial meaning. But it does demand the Court grapple with that history to construct a meaning of alienage that is capable of enduring.

BA, LLB (Hons) (Monash).