The Alien and the Constitution: The Legal History of the ‘Alien’ Power of the Australian Commonwealth

Abstract

The identity of a body politic is inevitably intertwined with that of the excluded other. The quintessential political ‘other’ is the ‘alien’. The express constitutional power to regulate ‘naturalisation and aliens’ in s51(xix) has come to be seen as the hook upon which to hang the Commonwealth’s power to regulate Australian nationality and citizenship. Given the Australian colonies were obsessed with exclusions, and the Commonwealth’s roll-out of the White Australia policy as one of its first legislative priorities on immigration, this connexion between alienage and immigration (and thus eventually citizenship) appears inevitable. It is, however, historically wrong. This article argues that the scope and purpose of the ‘aliens power’ has been miscast, and that as a matter of history its true analogue was the races power, not immigration. The power was designed to regulate the domestic disabilities of aliens (and the removal of those disabilities through naturalisation), just as the races power regulates the disabilities of particular classes of persons. Moreover, and contrary to subsequent jurisprudence, the meaning of ‘alien’ at Federation was clear and unambiguous. This article unpicks the history records to understand this purpose and meaning at Federation in a way that challenges our contemporary understanding of Australian identity.

Keywords: Alien; Legal History; Constitutional Law; Australia; Nationality; Citizenship