Unequal Membership: The Constitution's Score on Citizenship

Abstract

Vikram Seth's book, "An Equal Music," inspired the title of this chapter, "An Unequal Membership: the Constitution's score on citizenship." Seth's book invites the reader into the life of a string quartet - the dynamics, inspirations and musical highs and lows of life as a musician. But how does this relate to this chapter and this book? Perhaps the extract from the John Donne sermon that Seth includes at the beginning of the book sheds more light on the themes relevant to my argument:

"And into that gate they shall enter, and in that house they shall dwell, where there shall be no cloud, nor sun, no darkness nor dazzling, but one equal light, no noise nor silence, but one equal music, no fears nor hopes, but one equal possession, no foes nor friends, but one equal communion and identity, no ends nor beginnings, but one equal eternity."

While I think these words refer to the "pearly gates" of heaven, they are relevant to any gates that seek to exclude. In entering Australia's gates, non-citizens have not been welcomed to "one equal communion and identity" at any time throughout Australia's history. As a constitutional lawyer interested in citizenship, my inclination is to think about our constitutional document and its role in this unequal membership in Australian society. It is my thesis that the absence of citizenship in the Australian Constitution has fundamentally affected the development of legal and normative notions of membership of the Australian community. This chapter will examine why citizenship was omitted, the legal consequences of that omission, and the associated judicial constraint upon using normative notions of citizenship. Moreover, I argue that the recent MV Tampa crisis reflects further on our unequal membership, with notions of exclusion being more important than inclusion in determining membership of the Australian community. The chapter concludes by arguing for a stronger constitutional statement about citizenship for utilisation by courts, policy makers and the public, to more readily and easily enable a broader sense of membership in Australia.

Keywords: citizenship, constitution, Australia, Tampa

JEL Classification: K1, K19, K3, K39