The legal parameters of Australian citizenship

Abstract

Rhetoric on the topic of Australian citizenship has widely emphasised its significance, particularly as a source of important rights and corresponding obligations. Despite this, as many commentators have noted, the constitutional limits of Parliament’s power over citizenship remain unsettled, and the rights and obligations that legally distinguish citizens from non-citizens are not easy to identify. This thesis is motivated by a desire to determine the extent to which claims about the significance of Australian citizenship are reflected in its reality, as a legal concept.

There are three dimensions in which the legal concept of Australian citizenship is shaped: constitutional law, statute law and the common law. The thesis conducts a doctrinal study driven by two questions: First, what are the parameters of citizenship, and what rights and obligations are generated for citizens, within each of the three dimensions identified? Secondly, to what extent do the three dimensions intersect in a manner that helps to inform the legal meaning of Australian citizenship?

The study finds that, within each individual dimension, silences and ambiguities limit the potential for a cohesive notion of citizenship that gives rise to clear rights and obligations to emerge. However, it demonstrates that, by paying close attention to the intersections between the three dimensions, it is possible to arrive at a conceptualisation of Australian legal citizenship that is more cohesive than the law within any individual domain would suggest.

The thesis illustrates one way in which the intersections between the different citizenship dimensions might be coherently resolved. This is by no means the only interpretation available, nor does it provide an answer to every question that has plagued citizenship law in Australia. However, it serves as an indication of the potential for a clearer notion of Australian legal citizenship than that which exists at present to be developed through focus on the connections between existing conceptualisations of citizenship.

Note: There have been a number of very recent changes and proposals for change in the area of citizenship law, both in Australia and in foreign countries. I have endeavoured to incorporate these developments into this thesis, as far as possible. The state of the law reflected in the thesis is, to the best of my knowledge, correct as at March 10 2015.