When parliament has nowhere to turn

Australia is increasingly divided by arguments over who belongs. Labor, the Coalition and One Nation appeal to different constituencies through competing visions of national identity: multicultural or monocultural, open or closed, diverse or uniform. Voters are encouraged to focus on where the line between "us" and "them" should be drawn. It’s troubling that who decides those lines is a Parliament that already asserts a power that has never been constitutionally explained?

For most Australians, citizenship is assumed to be secure. It is the legal expression of membership in the national community, not a privilege held at the discretion of government. Yet since the introduction of Australian citizenship in 1948, Parliament has legislated on the assumption that it may transform citizens into aliens in circumstances extending beyond voluntary naturalisation abroad.

One source of constitutional power is readily understood. A citizen who voluntarily naturalises in a foreign country made a voluntary choice to leave Australia.  Beyond that, the source of power to redefine a citizen as an alien remains unexplained.

The issue is often obscured by references to dual citizenship. But dual citizenship, by itself, explains nothing. The critical question is how that status arose. Where foreign law automatically confers citizenship, without a person leaving Australia, naturalising abroad, pledging allegiance to a foreign state, or taking any voluntary step to transfer political membership, it is not the citizen who has acted. It is the foreign law that has operated.

Yet, since 1948 but not before, the consequence under Australian law has been that Australian citizens can be treated as aliens for no more than registering marriage to a foreigner, or declaring foreign ancestral descent.

That raises a fundamental constitutional question. If a citizen has done nothing voluntarily to separate themselves from Australia, what is the source of Parliament's power to declare that they no longer belong?

For decades, Parliament has acted on the assumption that such a power exists. Yet no clear constitutional source has been identified. The assumption has simply been repeated.

The High Court is ordinarily the institution responsible for resolving constitutional questions. Judicial review itself is constitutionally guaranteed. Yet every attempt to obtain an answer has reached a dead end, most recently through the conclusory assertion of a single High Court Justice rather than a determination of the underlying constitutional question.

The silence extends beyond the courts. Attorneys-General have been informed. Members of Parliament have been informed. Yet no meaningful answer has emerged.

That should concern Australians regardless of political persuasion.

The issue is not any single individual, nor is it any particular group. The issue is whether there are constitutional limits on Parliament's claimed power to decide who belongs to the Australian people.

Yesterday the focus was those who had "acquired citizenship". Today it is those labelled "terrorists" under an increasingly elastic definition. Tomorrow it could be an ethnic community, a religious minority, a political movement, or any other class that Parliament, or the electorate, comes to regard as undesirable.