There is no greater sorrow on earth than the loss of one’s native land
— Euripides Medea Footnote 3I Introduction
The ability to enter one’s country has long been considered a hallmark of belonging to a political community.Footnote 4 As early as 1215, the Magna Carta established that ‘it shall be lawful for any [subject] to leave and return to our kingdom unharmed’.Footnote 5 Blackstone observed that the ‘natural and regular consequence of [one’s] personal liberty is that every man may claim a right to abode in his own country so long as he pleases’.Footnote 6 Closer to home, Griffith CJ declared in Potter v Minahan that:
Every human being ... is a member of some community, and is entitled to regard the part of the earth occupied by that community as a place to which he may resort when he thinks fit.Footnote 7
Within Australia, however, the question of whether the Constitution guarantees a citizen’s ability to enter the country remains unsettled. Unlike other countries,Footnote 8 Australia’s Constitution provides no express right for citizens to enter the country. Nonetheless, scholarship has been divided as to whether such a guarantee forms an implied part of Australia’s constitutional framework. ZinesFootnote 9 and Kirk,Footnote 10 for example, have both suggested that the Constitution might recognise an implied freedom of entry for Australian citizens. Other commentators have rejected any such implication as ‘undemocratic’ and lacking in doctrinal foundation.Footnote 11 Despite such conjecture, this topic has been subject to little detailed analysis. As Jeffries, McAdam and Pillai observe, ‘the case for a constitutional right of entry remains highly speculative’ and underdeveloped.Footnote 12 This article seeks to address this gap in the literature, examining whether the Constitution recognises an implied freedom of entry.
This article contends that there is one — but only one — viable basis on which a freedom to enter Australia can be recognised within the Constitution: as an implication based upon the Constitution’s guarantee of popular sovereignty.
To develop this contention, this article has two main objectives. The first is to reject the primary existing scholarly account for an implied freedom of entry, developed principally by Professor Helen IrvingFootnote 13 — an argument which links a freedom of entry to the definition of non-alienage in section 51(xix) of the Constitution. Part I begins by outlining and contextualising this argument, directing particular attention towards the High Court’s recent decision in Love.Footnote 14 Thereafter, Part II critiques this account. I contend that jurisprudential developments post-Love, and broader historical and conceptual difficulties, pose insurmountable obstacles to accepting Professor Irving’s argument.
Given these difficulties, the second objective of this article is to propose an alternate basis for recognising an implied freedom of entry: one founded on the Constitution’s guarantee of popular sovereignty. Part III develops this argument, building upon a line of recent High Court jurisprudence which has articulated the constitutional basis of a popular sovereignty principle.Footnote 15 Part IV considers and responds to possible objections.
In exploring this question, this article traverses an issue of contemporary importance. Most notably, the Federal Government’s COVID-19 regulationsFootnote 16 prevented approximately nine-thousand Australian citizens from entering Australia during the pandemic.Footnote 17 Indeed, an argument that these regulations offended an implied freedom of entry was pleaded, but ultimately not pressed, in a Federal Court challenge to those regulations.Footnote 18 Similarly, Parliament has recently enacted the Counter-Terrorism (Temporary Exclusion Orders) Act 2019 (Cth), allowing Australian citizens to be denied entry into the country if, amongst other requirements, a Minister reasonably suspects that citizen of supporting a terrorist organisation.Footnote 19 The Commonwealth’s increasing willingness to prevent citizens from entering Australia makes this an important and timely question to address.
Before continuing, I make three qualifications about this article. First, a point of terminology. In the literature and case law, various authors refer to a ‘right’ of return, entry and abode.Footnote 20 For reasons developed below, this article adopts a different expression: an implied freedom of entry. Consistent with other constitutional freedoms,Footnote 21 this freedom would operate as a limitation on legislative and executive power, not a personal right.Footnote 22
Second, this article is concerned only with investigating the constitutional basis of an implied freedom of entry. I do not assess whether any particular statutory scheme would burden that guarantee. As with other constitutional freedoms, this implication would operate as a qualified limit on government power.Footnote 23 Even if legislation burdened entry, that law would remain valid if ‘reasonably appropriate’ to achieving a constitutionally legitimate end.Footnote 24 As the experience with other constitutional freedom shows, these statutory questions might become the locus of considerable contestation.Footnote 25 However, before those issues are addressed, it is necessary to first establish a constitutional basis for recognising this freedom — it is the constitutional question, and not statutory analysis, which is the focus of this article.
Finally, a methodological point. The High Court has made clear that constitutional implications are drawn by reference to what ‘the terms and structure of the Constitution prohibit, authorise or require’.Footnote 26 In examining an implied freedom of entry, the focus of this article is thus directed towards the Constitution’s text and structure, as expounded by High Court jurisprudence.
II Understanding the First Account: Love, Non-alienage and Entry
This article commences by examining the primary argument which has been made in support of an implied freedom of entry: an account based on section 51(xix) of the Constitution, which empowers Parliament to make laws with respect to ‘naturalization and aliens’. Broadly expressed, this argument relies upon one central proposition — that a defining or essential characteristic of a non-alien is their capacity to enter Australia.
Professor Helen Irving has most clearly developed this argument, contending that an ability to enter Australia ‘lies at the core of the definition of [non-alienage], both conceptually and constitutionally’.Footnote 27 However, since Irving’s 2008 article, jurisprudence concerning section 51(xix) has evolved significantly. To present the strongest argument in favour of this account, this section repositions Irving’s argument in light of the High Court’s contemporary non-alienage jurisprudence.Footnote 28 Ultimately, as I argue in Part II, I view this account as problematic. Before reaching that criticism, however, it is important to advance this account it in its best possible form.
The starting point for developing Irving’s argument is Love,Footnote 29 where a High Court majority held that Aboriginal Australians were not aliens for the purposes of section 51(xix) of the Constitution. The reasoning of the Love majority, however, moves beyond considerations of Indigeneity. The case concerned ‘underlying conceptions of the relationship between individuals and the Commonwealth’.Footnote 30 As I explain, this underlying conception of non-alienage in the Love majority’s reasoning may provide support for Irving’s argument. Those judgments, therefore, require unpacking.
To examine how Love may support Irving’s argument, it is necessary to examine three components of the Love majority judgments: (A) the majority’s characterisation of section 51(xix), (B) the connection between non-aliens and the physical territory of Australia which emerges through that characterisation and (C) the possible consequential linking of non-alienage to an implied freedom of entry.
A The Love Characterisation of Section 51(xix): Constitutional Membership
For present purposes, the first significant aspect of Love lay in the majority’s articulation of the ‘essential character’ of section 51(xix).Footnote 31 Whilst the four majority judgments in Love involved differences in analysis,Footnote 32 each member of the majority appeared to adopt a broadly common characterisation of the aliens power: that section 51(xix) is concerned with persons who are ‘members’ of the Australian body politic.Footnote 33
In Love, Edelman J was clearest in this respect. To Edelman J, the crucial criterion of non-alienage is one’s ‘membership of the Australian political community’.Footnote 34 A non-alien, to his Honour, is the description applied to those who are ‘essential members of the “community which constitutes the body politic of the nation state”’.Footnote 35 Similarly, Bell J,Footnote 36 Nettle JFootnote 37 and Gordon JFootnote 38 all adopted the nomenclature of ‘membership’ to characterise non-alienage.
Two points are immediately important about this characterisation of section 51(xix). First, in equating non-alienage to some form of constitutional membership, the Love majority faced an immediate tension. On the one hand, each majority judgment accepted that Parliament was the body which generally supplied the criterion which determines community membership.Footnote 39 Within contemporary Australia, it is citizenship which ordinarily ‘shape[s] the membership of the political community’.Footnote 40 Yet, each of the Love majority also insisted that Parliament’s ability to define membership was not a power at largeFootnote 41 — the legislature could not ‘expand the power conferred by section 51(xix)’ however it pleased.Footnote 42 As Gerangelos observes,Footnote 43 this reasoning explicitly ‘engages with the logic of the doctrine’ expressed in Australian Communist Party v Commonwealth: that Parliament cannot recite itself into power by allowing citizenship (a statutory term) to govern alienage (a constitutional term).Footnote 44
Second, it is reasonably clear that the majority in Love recognised this ‘membership’ as having some substantive content immune from legislative alteration — so much was apparent in the holding that certain non-citizens are non-aliens. Thus, across the majority judgments in Love, each Justice searched for a ‘central characteristic’Footnote 45 or the ‘essential meaning’Footnote 46 of non-alienage which was beyond legislative alteration. As Stellios observes, this approach conceptualises section 51(xix) as a power over people.Footnote 47 It is the fixed and ‘defining characteristics of those persons’, on this view, which gives meaning to section 51(xix).Footnote 48
What, then, were the core (or definitional)Footnote 49 features of non-alienage to the Love majority? The answer to that question requires some unpacking.
B The Core Features of Non-alienage
Whilst the precise description of the defining characteristics of non-alienage varied in Love, one idea appeared to lie at the heart of the majority view. Non-alienage, the Love majority held, may arise from a person or group’s entrenched physical connection to the Australian body politic and its territory: a physical connection which, on this majority analysis, lies beyond legislative alteration.Footnote 50
In Love, Edelman J again most explicitly linked non-alienage with a person’s physical connection to the body politic. To Edelman J, the notion of ‘belonging’ is the core characteristic of non-alienageFootnote 51 — a concept that was said to encompass not just a legal status, but a person’s broader tie to ‘the land of Australia generally, and thus to the political community of Australia’.Footnote 52 Or, as his Honour later described in Love, to be a non-alien reflects a physical connection to the ‘Australian political community by bonds of birth and parentage that the Commonwealth Parliament cannot legislate to sever’.Footnote 53
Although not articulated in precisely this manner, both Gordon J and Bell J conceptualised section 51(xix) in similar terms.Footnote 54 Gordon J held in Love, for example, that one of the ‘essential requirements of a polity’ is that ‘sovereignty ... is asserted over territory’.Footnote 55 One’s description as a non-alien, to her Honour, thus ‘cannot be divorced from that territory’.Footnote 56 Justice Bell, likewise, suggested that non-aliens are those who cannot ‘be said to belong to another place’.Footnote 57 Once more, on this view, it is a physical connection to Australia which is associated with non-alienage.
Justice Nettle’s conception of non-alienage was slightly different than the other Love majority judges. To his Honour, constitutional membership did not concern a person’s broader tie to the political community.Footnote 58 Rather, Nettle J understood section 51(xix) as reflecting a relationship between sovereign and subject,Footnote 59 a concept mediated through notions of ‘permanent allegiance and protection’.Footnote 60 However, Nettle J still emphasised that non-alienage creates a specific connection to the territory of Australia. Specifically, to his Honour, the non-alien is owed a ‘unique obligation of permanent protection’ by the sovereignFootnote 61 — an obligation which manifests in the state’s requirement to not subject non-aliens to ‘exclusion from the territory of Australia’.Footnote 62 Again, therefore, it is a connection to the physical land of Australia which emerges as a component of non-alienage in Nettle J’s judgment.
Ultimately, the takeaway from Love was significant: to varying degrees, a High Court majority identified a concept of constitutional membership which incorporated a person’s physical connection to the territory of Australia.Footnote 63
C Non-alienage and a Freedom of Entry
Against this backdrop, the Love majority’s conception of section 51(xix) may provide support for Irving’s attempt to connect a freedom of entry to non-alienage.Footnote 64 Simply put, if a feature of non-alienage is a person’s connection to the physical territory of the country, then there must be a means of maintaining that connection — a guaranteed freedom of entry into Australia.
Hints of this view were discernible in cases before Love. In Air Caledonie International v Commonwealth, for example, the High Court unanimously spoke of a ‘citizen’s right to re-enter the country, without need of any Executive fiat or “clearance”’.Footnote 65 In Singh v Commonwealth, Gummow, Hayne and Heydon JJ described the relationship between non-alien and sovereign as ‘mutual’ and suggested that one consequence of this mutuality was ‘perhaps’ found in the ‘right of the Australian citizen to enter the country’.Footnote 66 Justices Brennan, Deane and Dawson similarly observed in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs that the Constitution creates an ‘important difference’ between the alien and the non-alien: the ‘vulnerability of the alien to exclusion’.Footnote 67 More recently, in a statement post-Love (to which I later return), Kiefel CJ, Keane and Gleeson JJ referred to non-alienage as an ‘assurance’ that a person ‘is entitled to be at liberty in this country and to return to it as a safe haven in need’.Footnote 68
Expressed in the abstract, however, these statements were left without clear doctrinal foundation. Love is significant in this context because it provides a concrete basis upon which to explicate these judicial suggestions of a freedom of entry — that a freedom of entry is needed to maintain the connection between the non-alien and the Australian body politic.
In Love itself, Bell, Nettle and Edelman JJ all alluded to this form of argument. Justice Bell, for example, explicitly stated that the ‘exercise of the sovereign power of this nation does not extend to the exclusion of [non-aliens] from the Australian community’.Footnote 69 To allow the sovereign to remove non-aliens from Australia, Nettle J similarly held, would impermissibly grant Parliament power to ‘tear the organic whole of the society asunder’.Footnote 70
Justice Edelman, likewise, has suggested (in oral argument) that ‘the core of being a non-alien’ is the ‘inability to be deported or prevented from entering Australia’.Footnote 71 Hence, his Honour indicated in Love that non-aliens must have the means of maintaining access to the ‘defined place or territory’ of their belonging.Footnote 72 Or, as his Honour put more directly in Love:
Membership of the community [is significant] because [it] involves an explicit statement of an ‘absolute and unqualified right’ that a citizen cannot be either deported or denied re-entry.Footnote 73
An account, in short, which indicates that a constitutional member is afforded a protection distinguishable from the constitutional alien: an immunity of the non-alien from exclusion.
Post-Love, there thus seemed considerable force in Irving’s argument for an implied freedom of entry founded on section 51(xix) of the Constitution. Namely, that a freedom of entry is necessary to give effect to the core conception of non-alienage.Footnote 74
III Rejecting the First Account: Doctrinal and Conceptual Challenges
Having outlined the existing argument favouring an implied freedom of entry, this section turns to offer a novel critique of this account. I contend that an approach linking a freedom of entry to the definition of non-alienage is problematic for three reasons: (A) it is contrary jurisprudential developments post-Love, (B) it faces historical inconsistencies and (C) is attended by broader conceptual difficulties. On this basis, I conclude that any implied freedom of entry ought to operate independently from the concept of non-alienage, an account I develop in Part III.
A The Jurisprudential Challenge: The Post-love Shift
The first challenge to Irving’s account is that, post-Love, the High Court has ‘shifted’Footnote 75 its characterisation of section 51(xix) — a shift which is fatal to Irving’s proposed implication.
The High Court’s post-Love judgment in Chetcuti v Commonwealth Footnote 76 is critical in this respect. In this case, a new majority of Kiefel CJ, Gageler, Keane and Gleeson JJFootnote 77 re-conceptualised section 51(xix) as conferring Parliament with ‘both power to determine who is and who is not to have the legal status of an alien and power to attach consequences to that status’.Footnote 78
To understand how this development challenges Irving’s account, it is essential to unpack (1) what this Chetcuti characterisation of section 51(xix) entails, before (2) explaining how this characterisation forecloses a freedom of entry based on section 51(xix) of the Constitution.
1 The Competing View of Section 51(xix)
The first significant feature of the Chetcuti joint judgment is that the majority adopted a different characterisation of section 51(xix) to the Love majority— that alienage and non-alienage is a ‘status’ determined exclusively by Parliament.Footnote 79 As I shortly explain, this view conceptualises alienage as having no immutable or established feature. Instead, the legislature alone decides ‘who is and who is not’ an alien.Footnote 80
The clearest articulation of this view emerges from Gageler J’s dissent in Love.Footnote 81 In that case, his Honour characterised the aliens power as a power to determine a ‘legal status’.Footnote 82 Crucially, as a legal concept, Gageler J views the legislature as the sole body equipped with the ‘power to determine [this] status’,Footnote 83 a determination it has reached through the statutory concept of citizenship.Footnote 84 To Gageler J, the constitutional category of ‘non-citizen non-alien’ is thus a non sequitur:Footnote 85 one is either a citizen, or an alien.
As Stellios has observed, this approach characterises section 51(xix) as a ‘topic of juristic classification’.Footnote 86 Broadly, topics of juristic classification refer to heads of power with no ‘fixed’ and ‘concrete’ meaning.Footnote 87 Such matters are instead artificial legal constructs which, owing to their artificiality, take their definition from legislative enactment.Footnote 88 For instance, the High Court has described the trade-marks power (section 51(xviii)) as a topic of juristic classification.Footnote 89 A trade-mark is not a ‘physical object but an ‘artificial’ notion, capable of creation only through a legal instrument.Footnote 90 Hence, the meaning ascribed to the term depends upon legislative enactment — it is Parliament alone which gives content to this construct.Footnote 91
In Love, Gageler J similarly conceptualises alienage. Thus, in contrast to the Love majority,Footnote 92 his Honour rejects the idea that section 51(xix) has any pre-determined substantive content. Instead, Gageler J describes the concept of alienage as necessarily without any ‘established and immutable legal meaning’.Footnote 93 The status of alienage can be ‘judicially ascertained’Footnote 94; but such ascertainment occurs ‘only through the application of positive law’.Footnote 95
How, then, does Gageler J reconcile this approach with the interpretive constraints imposed by the Communist Party doctrine?Footnote 96 His Honour does so in two different ways. First, Gageler J suggests that Parliament’s ability to affect community membership is not ‘entirely unconstrained’.Footnote 97 His Honour indicates that other sections of the Constitution may restrain Parliament’s power to affect constitutional membershipFootnote 98 — restrictions which I discuss below.Footnote 99
Secondly, as concerns section 51(xix) itself, Gageler J contends that Communist Party principles have little bearing on topics of juristic classification. Specifically, on Gageler J’s understanding, there is no ‘constitutional fact’ (or meaning) to be ascertained under the aliens power: that meaning is determined by Parliament alone.Footnote 100 Hence, to his Honour, the Communist Party principle has a limited bearing on section 51(xix), merely requiring ‘a connection between the power and a particular law’ determining alienage status.Footnote 101 This standard of review is relaxed, perhaps resembling a ‘rational connection’ analysis in other fields of constitutional lawFootnote 102 (ie, a law purporting to determine alienage status would be invalid only if it had no rational connection to alienage whatsoever).
This conceptualisation of section 51(xix) has been controversial. Justice Edelman, in particular, has variously labelled Gageler J’s characterisation of section 51(xix) as ‘distorted’,Footnote 103 an ‘absurdity’,Footnote 104 ‘radical’,Footnote 105 ‘problematic’,Footnote 106 an ‘incoherence’,Footnote 107 ‘remarkable’,Footnote 108 a ‘rot’,Footnote 109 ‘curious’,Footnote 110 a ‘grave danger’Footnote 111 and akin to treating the Constitution ‘like alphabet soup’.Footnote 112 The Communist Party principle is central to this criticism — that the validity of a law cannot be ‘determined by the opinion of the Commonwealth Parliament’.Footnote 113
Notwithstanding these criticisms, in a series of post-Love cases, a High Court majority has accepted Gageler J’s view of section 51(xix). Hence, the Chetcuti majority adopted Gageler J’s description of alienage as a ‘status’ determined by citizenship.Footnote 114 Likewise, the same plurality in Alexander described section 51(xix) as enabling Parliament to ‘attribute to any person who lacks ... citizenship “the status of alien”’.Footnote 115 Post-Love, therefore, it seems that Gageler J’s conception of section 51(xix) as a topic of juristic classification has prevailed.
2 Non-alienage as Legal Status: Foreclosing a Freedom of Entry
The view that non-alienage is determined exclusively by Parliament poses a fatal difficulty for Irving’s argument that section 51(xix) can ground an implied freedom of entry. Put simply, if non-alienage has no ‘established and immutable’ meaning,Footnote 116 then a freedom of entry cannot lie (as Irving claims) ‘at the core of the definition’ of this concept.Footnote 117 For non-alienage, on this view of section 51(xix), has no fixed characteristics whatsoever.Footnote 118
Instead, under the High Court’s current conception, it is only citizenship which determines the characteristics of non-alienage. Citizenship, however, remains an unsuitable concept around which to tether any implied constitutional freedoms. For the High Court has long accepted that citizenship, a legislative concept, has no ‘immutable core elements’.Footnote 119 Rather, it falls to Parliament to ‘create and define the concept of Australian citizenship’ and to determine which benefits (including entry) attach to that notion.Footnote 120
In Alexander, a case concerning the Commonwealth’s power to strip citizens of citizenship, a High Court majority affirmed the vulnerability of grounding any constitutional freedoms based upon section 51(xix) alone. Having described non-alienage as a ‘legal status’,Footnote 121 the joint judgment of Kiefel CJ, Keane and Gleeson JJ observed that ‘once it is accepted, as it must be, that the statute conferring citizenship is the source of Mr Alexander’s rights [as a non-alien] ... it must also be accepted that [this] statute may limit those rights, including by providing for the circumstances in which they may be lost’.Footnote 122 A view, in short, which emphasises that citizenship is ‘a purely statutory concept’,Footnote 123 inapt to establish any entrenched Constitutional freedoms.
Thus, the prospect of injecting a freedom of entry into the definition of non-alienage faces difficulties in the post-Love case law. It remains true, however, that the High Court’s jurisprudence concerning section 51(xix) is far from settled. As such, the question remains whether the definition of non-alienage should, from a more theoretical standpoint, incorporate an implied freedom of entry. Below, I move away from a strictly doctrinal analysis, to consider two broader conceptual challenges in connecting a freedom of entry to the definition of non-alienage.
B The Historical Difficulty
The first conceptual challenge to Irving’s account is one of history — that non-alienage, as an inherited common law concept, was never thought to guarantee a non-alien’s ability to enter their country of nationality.
The Constitution does not define the term ‘alien’, and the record of its drafting does not identify the core characteristics of this term, nor how it should be interpreted.Footnote 124 As such, the High Court has developed its understanding of alienage and non-alienage based on analogical common law reasoning,Footnote 125 turning to ‘centuries of legal history and political theory’ within Britain to inform its section 51(xix) jurisprudence.Footnote 126
These historical factors present a weighty obstacle to linking a freedom of entry to non-alienage. Specifically, at common law, one’s description as a non-alien has never guaranteed entry into one’s country of nationality. To the contrary, British legal history is replete with examples of non-aliens being expelled from and prevented entry into Britain.Footnote 127 Foremost amongst these was exile, a form of punishment in which the sovereign forcibly expelled non-aliens from their homeland.Footnote 128
The British Parliament’s capacity to exclude non-aliens from their homeland is unsurprising. In the absence of a written constitution, it has long been accepted that the British Parliament can ‘make or unmake any law whatever’,Footnote 129 including legislation preventing non-aliens from entering their country of nationality. Against this historical backdrop, there is a considerable conceptual difficulty in arguing that a defining characteristic of the inherited common law notion of non-alienage is a freedom to enter the country.
Indeed, in Australian jurisprudence, the common law heritage of section 51(xix) proved problematic in early attempts to attach a freedom of entry to the definition of non-alienage. Over a series of post-Federation cases, the Griffith and Knox Courts upheld exclusions on British non-aliens from entering Australia.Footnote 130 In 1908, O’Connor J referred to British non-aliens as able to enter Australia, ‘unless some law of the Australian community has in that respect decreed the contrary’.Footnote 131 Likewise, in R v Macfarlane, Higgins J held that ‘all the King’s subjects, being bound by one tie of allegiance to the one sovereign, are free to move at will throughout the Empire unless some law forbid them’.Footnote 132
Of course, the significance of these post-Federation cases should not be overstated. These cases pertained to British non-aliens:Footnote 133 the question of whether Parliament could equally restrict the movement of Australians into their own country has never been tested before the High Court.
Nonetheless, this foundational case law reflects a difficulty in Irving’s account. So long as the High Court accepts the relevance of history as informing its section 51(xix) jurisprudence, the shadow of the British common law looms large over any argument that a freedom of entry is a defining feature of non-alienage.
C The Conceptual Challenge
A final objection is more theoretical in scope: that a freedom of entry is not conceptually necessary to give effect to the notion of non-alienage. This fact militates strongly against recognising an implication in this form.
In general, the High Court has been cautious in deriving novel constitutional implications. As Goldsworthy observes, any implication limiting government power gives rise to a ‘danger of the Constitution being altered without the democratic endorsement of the electors’.Footnote 134 Hence, the High Court has established a demanding requirement for acknowledging implications.Footnote 135 Such constraints are recognised only where ‘logically or practically necessary’ to preserve the Constitution’s text or structure.Footnote 136
Against this backdrop, constitutional implications can be derived from section 51(xix) only to the extent that it is necessary to give effect to the definition of alienage or non-alienage. Irving, in this respect, argues that it is ‘necessary’ to differentiate aliens and non-aliens by reference to the contrasting substantive ‘obligations’ owed to these two groups of people.Footnote 137 To Irving, an implied freedom of entry is necessary to ensure that the distinction between aliens and non-aliens is not ‘meaningless’.Footnote 138
Upon closer inspection, however, this argument faces difficulties. For one, whilst aliens and non-aliens must be definitionally distinguished, it is not clear why that distinction must centre around substantive rights and freedoms. On the contrary, points of distinction are regularly made between classes of people without recourse to their substantive rights. To take an unrelated example, section 117 of the Constitution distinguishes between people from different States — not by reference to the different rights owed to those people but by reference to where those individuals reside.Footnote 139
In the context of section 51(xix), aliens and non-aliens can similarly be distinguished without having regard to substantive freedoms.Footnote 140 In Chetcuti, the majority engaged in this distinction through analysing a factual question: whether a person had citizenship.Footnote 141 On the Love majority analysis, this distinction could be ascertained through a similar factual inquiry. Specifically, a Court would assess whether a person’s prior connection to Australia meant they were a ‘member of the Australian political community’Footnote 142 — a description which could still be satisfied, even if that person did not have a guaranteed ability to enter Australia at that specific point in time.
As a practical example, the Federal Government’s COVID-19 travel restrictions illustrated that the distinction between aliens and non-aliens is not necessarily conditioned upon the capacity to enter Australia. During COVID-19, several Australian nationals were prevented re-entry into Australia.Footnote 143 However, throughout this period, it remained possible to distinguish between persons who were aliens, and those who were not. People who were citizens,Footnote 144 for example, remained non-aliens during this period, even if those non-aliens did not have a guaranteed ability to enter Australia.
The takeaway, for present purposes, is straightforward: that a freedom of entry is hardly necessary for the High Court to maintain a distinction between aliens and non-aliens. Ultimately, that fact alone points decisively against connecting an implied freedom of entry to the definition of non-alienage.
D Non-alienage and a Freedom of Entry: An Inopportune Framework
Section 51(xix) remains, at best, an unsettled foundation upon which to establish a freedom of entry. Both jurisprudentially and theoretically, significant difficulties arise in connecting the definition of non-alienage to such an implication. Any freedom of entry, therefore, ought to operate independently of non-alienage. The remaining sections of this article consider an alternative grounding for such a principle: an account, I contend, that is doctrinally and conceptually sound and is adapted for Australia’s unique constitutional context.
IV The Second Account: Political Sovereignty and a Freedom of Entry
Having rejected the first account of an implied freedom of entry, this section turns to advance an alternative grounding for this guarantee: an implication drawn from the Constitution’s protection of popular political sovereignty (the popular sovereignty principle).
The possibility of using popular sovereignty to ground a freedom of entry has been suggested by ZinesFootnote 145 and Kirk.Footnote 146 However, both authors outline this argument only briefly, and so the prospect of recognising an implication on this basis remains largely unexamined. This section develops these initial arguments, in an attempt to provide a firm constitutional foundation upon which an implied freedom of entry could be accepted.
Broadly expressed, my account is premised on two constituent claims, each of which are necessary to ground this implication.
-
A. The High Court has held that the Constitution guarantees an equal opportunity to participate in the exercise of political sovereignty.Footnote 147
-
B. A necessary aspect of having an equality of opportunity to participate in the exercise of political sovereignty is the ability to enter Australia.Footnote 148
Defending these two constituent claims, I contend, provides a basis on which a constitutional freedom of entry could be recognised.
Before developing this account, I make three brief comments on the scope of this argument. First, my argument in claim (A) is descriptive: that the High Court has, factually speaking, recognised a popular sovereignty principle. This section does not evaluate whether the High Court has been correct to do so. Those arguments have been made elsewhere.Footnote 149 Rather, in this section, I take as a given that the High Court has recognised this principle and tease out the implications of that recognition.
Second, although popular sovereignty relates to the implied freedom of political communication, my proposed freedom of entry is not derived from the freedom of political communication: the High Court has rejected that form of reasoning.Footnote 150 Instead, my account contends that the constitutional guarantee of popular sovereignty itself renders an implied freedom of entry necessary.
Finally, as noted above,Footnote 151 an implied freedom of entry would operate only as a qualified limitation on government power. Parliament could still enact legislation prohibiting entry, if that law was appropriate and adapted to achieving a constitutionally legitimate end.
A Political Sovereignty Within the Constitution
The first contingent claim is that the High Court has recognised the Constitution as guaranteeing an ‘equality of opportunity to participate in the exercise of political sovereignty’.Footnote 152 However, as Winterton has observed, notions of popular sovereignty are ‘notoriously ambiguous’Footnote 153 — particularly so in recent High Court jurisprudence. The High Court’s recognition of a popular sovereignty principle therefore requires some analysis.
To examine the High Court’s conception of popular sovereignty, this subsection (1) outlines the emergence and acceptance of a constitutional popular sovereignty principle, before (2) developing a precise account of what the High Court means by its use of this term.
1 Two Views of Popular Sovereignty
The term popular sovereignty broadly refers to a political system in which ‘the ultimate source of all authority ... originates in the people’.Footnote 154 Within the High Court, Justices have identified with two competing schools about the existence of a constitutional popular sovereignty principle.
The first school of thought is that notions of popular sovereignty have no ‘logical or legal basis’ within Australian constitutional theory whatsoever.Footnote 155 Under this view, the ultimate source of constitutional authority lay not with the Australian people, but the Imperial Parliament.Footnote 156 That body, after all, was the institution which enacted and legitimised the Australian Constitution at Federation.Footnote 157 Sir Owen Dixon endorsed this conception of constitutional sovereignty, arguing that the Constitution did not ‘obtain its force from the direct expression of a people’s inherent authority’ but instead gained legitimacy as part of the ‘exercise of [British] legal sovereignty’ over Australia.Footnote 158 Dawson J, similarly, contended that the only ‘foundation of the Australian Constitution’ was ‘an exercise of sovereign power by the Imperial Parliament’.Footnote 159
A contrasting understanding of Australia’s constitutional arrangements is that sovereignty remains ‘embedded in the Australian people’.Footnote 160 This view — which gained prominence following Australia’s independence from the United KingdomFootnote 161 — broadly embraces Madison’s theory of constitutional authority: that ‘the people, not the government, possess the absolute sovereignty’.Footnote 162 Support for this view emerged over a series of implied freedom of political communication cases in the Mason Court, where various Justices ascribed some form of ‘ultimate sovereignty’ to the Australian people.Footnote 163 Mason CJ was clearest in this respect, arguing that the Constitution:
[B]rought into existence a system of representative government for Australia in which the elected representatives exercise sovereign power on behalf of the Australian people.Footnote 164
The development of a popular sovereignty principle, his Honour continued, culminated in the passage of the Australia Act 1986 (UK) — a moment which ‘marked the end of the legal sovereignty of the Imperial Parliament’ and correspondingly recognised that ‘ultimate sovereignty resided in the Australian people’.Footnote 165
Ultimately, and notwithstanding a period of uncertainty,Footnote 166 the latter view of popular sovereignty has prevailed within contemporary High Court case jurisprudence. Both the French and Kiefel Courts repeatedly endorsed the view that the Constitution creates and guarantees the exercise of popular political sovereignty.Footnote 167 In Unions NSW (No 1), for example, a majority of French CJ, Hayne, Crennan, Kiefel and Bell JJ described the Constitution as establishing:
[G]overnment by the people through their representatives: in constitutional terms, a sovereign power residing in the people, exercised by the representatives.Footnote 168
In McCloy, a High Court majority similarly spoke of the ‘equality of opportunity to participate in the exercise of political sovereignty’ as an aspect of Australia’s democratic system ‘guaranteed by our Constitution’.Footnote 169 That same view was echoed more recently in Unions NSW v New South Wales (No 2), where Kiefel CJ, Bell and Keane JJ recognised a constitutional protection afforded to ‘equal participation in the exercise of political sovereignty’.Footnote 170
Two immediate points can be made about the contemporary expression of this principle. First, it is clear that the High Court has not only accepted a doctrine of popular sovereignty, but views that principle as a substantive constraint on government power. So much was apparent in Gerner v Victoria, where a unanimous High Court held that any laws which ‘impede the exercise of political sovereignty by the people of the Commonwealth’ will face constitutional scrutiny.Footnote 171 Likewise, the High Court has now accepted that the foundation of the implied freedom of political communication is the Constitution’s guarantee of popular sovereignty. In Clubb v Edwards, for example, a plurality of Kiefel CJ, Bell and Keane JJ spoke of the constitutional need for laws to be ‘consistent with the political sovereignty of the people and the implied freedom which supports it’.Footnote 172
Second, despite its numerous references to the term, the High Court has still not precisely articulated what it understands by its references to popular sovereignty.Footnote 173 As various scholars have observed, judicial references to the term remain somewhat ‘cryptic’Footnote 174 and ‘vague’,Footnote 175 without self-evident meaning.Footnote 176 Likewise, it provides scant assistance to turn to political theory to assess how the High Court understands popular sovereignty. As Duke observes, the breadth of the term allows for dramatically ‘different conceptions’ of popular sovereignty to emerge in philosophical discourse.Footnote 177
The question remains, therefore, as to how legislation might ‘impede the exercise of political sovereignty by the people’.Footnote 178 It is to that question which this next subsection turns, paying close regard to the High Court’s own jurisprudence.
2 What Is Meant by the High Court’s Use of the Term ‘Popular Sovereignty’?
High Court jurisprudence suggests two possible conceptions of popular sovereignty. The first, broader understanding links popular sovereignty to a requirement that the Government must govern on behalf, and for the benefit, of the people. If ‘governmental authority is derived from the people’, Kirk surmises, then it might be argued that ‘no law can be valid which unjustifiably harms them’.Footnote 179 This understanding of popular sovereignty exposes a broad range of legislative activity to constitutional scrutiny. Anything contrary to the popular interest, on this account, would be prima facie invalid.Footnote 180 A handful of High Court judgments may have have alluded to this view of popular sovereignty. Nettle J in McCloy, for example, posited in McCloy that ‘political sovereignty further necessitates that those who govern take account of the interests of the interests of all those whom they govern’.Footnote 181
However, with respect, it is difficult to discern a clear textual basis for this broad conception of popular sovereignty. On face value, such a constraint is inconsistent with the drafting of the Constitution, which sought to minimise ‘checks on legislative action’.Footnote 182 Likewise, it is doubtful that the judiciary is institutionally equipped to assess whether legislation is in ‘the public interest’. As Kirk observes, determining whether laws are publicly beneficial ‘is the essence of political judgment’, not judicial decision-making.Footnote 183
A second and more textually secure account connects popular sovereignty to equal participation in Australia’s electoral system.Footnote 184 Popular sovereignty, on this view, does not constrain all government action. Rather, it guarantees a freedom for the Australian people to participate in Australia’s electoral system — that being the process by which the people exercise political power to choose the representatives who govern on their behalf.Footnote 185
Support for this notion has emerged in the High Court’s more recent case law. In Gerner, for example, a unanimous High Court referred to the:
express provisions of ss 7, 24 and 128 and related provisions of the Constitution [as] establish[ing] the political sovereignty of the people of the Commonwealth.Footnote 186
Importantly, this textual identification connects popular sovereignty to Australia’s electoral system. Sections 7 and 24 vest the people with the capacity to choose their representatives.Footnote 187 Section 128, likewise, confers ‘the electors’ with power to approve constitutional amendments. In this respect, the modern conception of popular sovereignty echoes Deane and Toohey JJ’s statement in Nationwide News v Wills: that the ‘Constitution reserves to the people of the Commonwealth the ultimate power of governmental control’ through its ‘electoral processes’.Footnote 188
On this view, popular sovereignty is closely connected to the ability for the people to choose their elected representatives.Footnote 189 Importantly, however, the High Court has suggested that the electoral control protected by popular sovereignty extends beyond voting in elections. Rather, the principle encompasses more general participation in the political process — such participation being necessary to preserve the people’s ‘ultimate power’ of control over electoral outcomes.Footnote 190
The Unions NSW (No 2) plurality, for example, discussed political sovereignty in terms of ‘equal participation in the electoral process’.Footnote 191 The McCloy High Court similarly referred to laws which were ‘inimical to equal participation by all the people in the political process’ as being ‘fatal to [their] validity’.Footnote 192 More explicitly, in that same case, Nettle J indicated that:
‘Political sovereignty’ means the freedom of electors, through [engagement] between themselves and with their political representatives, to implement legislative and political changes.Footnote 193
Notice here that the focus of popular sovereignty is not just on the ability to vote. Rather, to the High Court, political sovereignty refers to the way in which the electors themselves can seek to ‘implement legislative and political changes’ through democratic participation.Footnote 194
Expressed in this manner, protecting popular sovereignty encompasses various substantive incidents beyond voting. Foremost amongst these incidents is the freedom of political communication, an implication which ‘ensures that the people of the Commonwealth enjoy equal participation in the exercise of political sovereignty’.Footnote 195 A free flow of political communication, on this view, is necessary to protect the ‘freedom of electors and their political representatives to disseminate or receive information’ which may influence political outcomes.Footnote 196
Likewise, persuasive suggestions have been made that equal participation in Australia’s electoral processes encompasses other freedoms. Various authors have argued, for example, that a freedom to access the seat of government,Footnote 197 form and engage with political parties,Footnote 198 observe political eventsFootnote 199 and run for elected officeFootnote 200 are all part of political sovereignty required by the Constitution — those activities being necessary to preserve the ‘freedom of electors ... to implement legislative and political changes’.Footnote 201 Indeed, in Re Gallagher, the High Court spoke of the ability to run for Parliamentary office as guaranteed by the ‘constitutional imperative’ of preserving ‘the ability of Australian citizens to participate in representative government’ (subject, in that case, only to the express qualifications in section 44 of the Constitution).Footnote 202 That language of political participation, on face value, is consonant with a principle that connects popular sovereignty to equal participation in Australia’s electoral system.
Further cases will be needed to chart the precise contours of constitutional popular sovereignty. The takeaway, for present purposes, is straightforward: although popular sovereignty relates to choosing one’s representatives, the principle as expounded by the High Court entails more than just voting. Instead, the concept encompasses all that is necessary to ensure popular control over Australia’s political systems — such control being framed in terms of equal ‘participation by all the people in the political process’.Footnote 203
B Freedom of Entry as a Necessary Pre-condition to Exercising Popular Sovereignty
Building upon this understanding of popular sovereignty, this section turns to the second continent claim: that a freedom of entry is a necessary pre-condition to ensuring an equal opportunity to exercise political sovereignty. As noted above, this argument is novel. Nonetheless, I contend that it is an implication which is (1) necessary in principle and (2) has attracted preliminary doctrinal support.
1 Freedom of Entry in Principle
The starting point for this claim emerges from a factual proposition: that an equal opportunity to exercise the incidents of popular sovereignty is restricted where Parliament deprives people of entry into Australia. The essence of this argument is surmised by Zines: that ‘to be forced to leave, or be prevented from returning to, Australia ... impair[s] the exercise of a person’s constitutional functions’.Footnote 204 Or, phrased differently, the Constitution could not guarantee an equal opportunity for ‘the people’ to exercise their political sovereignty if Parliament arbitrarily deprived some of those persons entry into the country. Legislation restricting entry, on this view, involves not just a denial of access to the physical territory of Australia; it is an exclusion from the Australian ‘political community’ as well.Footnote 205
In this respect, it is important to note that many of the constitutionally protected incidents of political sovereignty mooted above are exercisable only when physically present within Australia. Most obviously, legislation restricting entry interferes with the constitutional freedom afforded to political communication. Laws inhibiting entry, for example, render any protection afforded to in-country political communication, including political demonstration and protest, inutile.Footnote 206 Similarly, the constitutional safeguard afforded to political campaigning,Footnote 207 and inquiring into political matters,Footnote 208 is frustrated where legislation limits entry into Australia.
Beyond political communication, other components of political sovereignty are curtailed where legislation restricts entry into Australia. Any protection afforded to the ability to access government and its representatives,Footnote 209 observe political mattersFootnote 210 and effectively campaign for officeFootnote 211 (to the extent that those activities are protected under a popular sovereignty principle) is undercut when laws limit entry into Australia. Or, borrowing Nettle J’s language, the ‘freedom of electors ... to implement legislative and political changes’, through engagement ‘between themselves and with their political representatives’, is burdened where legislation denies some of those electors the ability to enter the country.Footnote 212
In Australia, hints of this view have been discernible in recent cases. Most notably, the plurality in Alexander spoke of return to Australia as matters of ‘public rights ... of “fundamental importance”’.Footnote 213 One reason for that ‘fundamental importance’, it has been suggested, is that a denial of entry is tantamount to an ‘exclu[sion] from [the] political community’.Footnote 214
Outside Australia, judicial support for the notion that entry is necessary to exercise political sovereignty emerges in the United States. Like its Australian counterpart, the United States Constitution contains no express guarantee of a citizen’s right to enter the country. However, the Supreme Court has held that a citizen’s ability to enter the United State is impliedly guaranteed by the United States Constitution’s Fifth AmendmentFootnote 215 (that no person can be deprived of their ‘life, liberty or property’ without due process of law).Footnote 216 In reaching that conclusion, the United States Supreme Court has emphasised that the ability of a citizen to enter the country serves as an essential pre-condition for exercising other constitutional guarantees.Footnote 217 In Aptheker v Secretary of State, for example, Douglas J described entering the country as the freedom which:
makes all other rights meaningful ... Once the right to travel [into the country] is curtailed, all other rights suffer, just as when curfew or home detention is placed on a person.Footnote 218
Care must be taken with this United States jurisprudence. For one, the Australian Constitution contains neither a due process clause,Footnote 219 nor an ‘independent constitutional principle of individual liberty’.Footnote 220 Additionally, Douglas J spoke of entry as necessary to effectuate ‘other rights’.Footnote 221 Such reasoning is not directly apposite in Australia, given that sections 7 and 24 of the Constitution ‘do not confer personal rights on individuals’, but rather constrains legislative and executive power.Footnote 222 Nonetheless, in the context of a popular sovereignty principle which protects various aspects of political participation from government interference, Douglas J’s reasoning still has pertinence in an Australian context.Footnote 223 Namely, that once legislation prohibits entry, the exercise of popular political sovereignty (and the concomitant incidents of political activity guaranteed through that principle) suffers.
Of course, the impact of remaining overseas should not be overstated: a person can still enjoy some form of political participation whilst out of Australia. Australia allows overseas voting,Footnote 224 whilst it also remains possible to engage in some political speech when overseas. Modern technology, in particular, allows ‘widespread, democratised, access to media’, which readily enables some form of communication on political matters from abroad.Footnote 225
However, the crucial aspect of popular sovereignty is not just that it protects some engagement in the political system. Instead, the concept is predicated upon an equal opportunity to participate in the electoral system.Footnote 226 A political system, after all, cannot guarantee true popular sovereignty if only some of the populace can fully engage in the electoral process.Footnote 227 Hence, in an oft-cited observation, Professor Harrison Moore described the ‘great underlying principle’ of the Constitution as being ‘to each a share, and an equal share, in political power’.Footnote 228 Similarly, the McCloy majority spoke of the Constitution as guaranteeing an ‘equality of opportunity to participate in the exercise of political sovereignty’.Footnote 229
In this context, it is doubtful whether legislation excluding entry into Australia allows a truly equal opportunity to participate in the political process. Consider, for example, the Federal Government’s power to deny re-entry to a citizen suspected of supporting a terrorist group under the Counter-Terrorism (Temporary Exclusion Orders) Act 2019 (Cth).Footnote 230 On its face, this legislation creates an inherently unequal opportunity to exercise political sovereignty. Some citizens can fully engage in the electoral system; others, who are overseas, do not enjoy that same opportunity to engage in in-country political communication,Footnote 231 accessing of governmentFootnote 232 and political observationFootnote 233 which are the incidents of a popular sovereignty guarantee.Footnote 234 In other words, the equal ‘freedom of electors’ to seek ‘to implement legislative and political changes’Footnote 235 is burdened through laws excluding persons from Australia. That fact, under the High Court’s current jurisprudence, means that legislation restricting entry demands constitutional justification. Or, phrased negatively, any unjustified restriction on an elector’s ability to enter the country is incompatible with the constitutional protection of popular political sovereignty.
Thus, there seems considerable force in Kirk’s observation: that to prevent an Australian from entering their own country is to ‘deprive (some) citizens of their ultimate [constitutional] power’.Footnote 236 To maintain a truly equal opportunity to participate in the exercise of political sovereignty requires a means of ensuring equal access to Australia’s political community itself — that is, an implied freedom of entry.
2 Freedom of Entry in Authority
The High Court has never considered a constitutionally implied freedom of entry.Footnote 237 Nonetheless, the argument that a popular sovereignty principle can ground an implied freedom of entry may have attracted support from at least two current High Court Justices.
The first is Edelman J, whose sole judgment in Hocking v Director-General of the National Archives of Australia offers support for an implication in this form.Footnote 238 Having observed that ‘the body politic of the Commonwealth’ refers to both a ‘political community of people’ and its ‘established territory’, his Honour contends that the Constitution contains:
[L]imits upon the extent to which legislatures can fracture the membership of the political community of the body politic such as by exclusion of … [the] people ... [and] by imposition of unjustified restraints upon the participation by the people in the operation of the body politic.Footnote 239
In support of the reference to ‘exclusion’, Edelman J cites Love: a case in which, it will be recalled, his Honour articulated a view that membership of the Australian body politic operates as a guarantee of entry into Australia.
Whilst Edelman J does not explain the foundation for this comment, two aspects of his Honour’s statement are notable. First, Edelman J explicitly refers to an implication constraining Government power — Parliament’s ability to ‘exclu[de]’ the ‘people’ from the body politic faces ‘limits’.Footnote 240 Second, Edelman J refers to the basis of this implication as the need to protect ‘participation by the people’ in the operation of the body politic, with his Honour citing various cases about representative democracy.Footnote 241 Although not identified as such, this language of ‘participation’ in the body politic echoes the High Court’s popular sovereignty jurisprudence just outlined.
In addition, Gageler J may have alluded to a similar basis for a freedom of entry in Love itself.Footnote 242 As outlined above, Gageler J views Parliament’s power to determine constitutional membership under section 51(xix) as having few limits.Footnote 243 Yet, his Honour acknowledges that ‘Parliament’s choice’ in this area ‘is [not] entirely unconstrained’.Footnote 244 Rather, Gageler J considers that limits on Parliament’s power to shape community membership are found elsewhere in the Constitution.Footnote 245 Specifically, and ‘having regard to the role of Australian citizenship as determining membership of the body politic’, Gageler J observes that any ‘exclusion’ of an otherwise qualified person from citizenship, and thus the body politic, ‘would need to be supported by “substantial reasons”’.Footnote 246 In support of that statement, Gageler J references the same representative democracy cases cited by Edelman J.Footnote 247
Gageler J does not elaborate upon the precise basis for this comment, and so a question arises: how might representative government relate to a restriction on any ‘exclusion’ from the body politic? One possible answer is through notions of popular sovereignty. After all, as conceptualised by the High Court, popular sovereignty is ‘an aspect of the representative democracy guaranteed by our Constitution’.Footnote 248 Preserving popular control over political outcomes, Gageler J may be suggesting, necessarily guards against any unjustified physical exclusion from Australia’s political community.Footnote 249
Thus, the jurisprudence from at least two Justices may be drawn upon to support an argument that the Constitution’s guarantee of equal political participation cannot be maintained without a freedom of entry into Australia.
C Consequences
If the above two premises are accepted, then an implied freedom of entry may be necessary to preserve the Constitution’s guarantee of popular sovereignty. Before continuing, I make three comments about the consequences of that implication. First, as noted, whether this freedom is burdened, and whether that burden could be justified, would turn on statutory particulars.Footnote 250
Second, a burden on this freedom would only arise where a restriction on entry was more than ‘inconsequential’.Footnote 251 Laws imposing no true burden on a person’s entry into Australia — such as airport screening — would not face constitutional scrutiny. Only an actual burden, such as criminalising entry into Australia,Footnote 252 or taxing citizens upon return to the country,Footnote 253 would demand constitutional justification.
Third, this freedom would extend to ‘the people’ identified in sections 7 and 24 of the Constitution — those persons being the repositories of political sovereignty. Admittedly, there is some uncertainty about who, precisely, constitute ‘the people’.Footnote 254 It suffices for present purposes to observe that, following statements in Alexander, the implication would at least extend to Australian citizens.Footnote 255
V Potential Objections and Replies
Having developed an argument for an implied freedom of entry, this article anticipates and rebuts three potential objections to my account. In so doing, I clarify the contours of my proposed implication.
A Methodological Objection
A first objection might critique the methodology used to arrive at this implied freedom. Recall that my proposed account develops an implied freedom of entry as a necessary pre-condition for maintaining popular sovereignty. I have argued that only through guaranteed physical presence in the body politic can an equal opportunity to participate in the political process be maintained.Footnote 256 Importantly, this account does not view entry into the country itself as a substantive component of popular sovereignty — plainly, a person’s mere presence in Australia does not amount to political participation.
The first objection might query this manner of deriving constitutional implications. Should we not, a critic might argue, only be concerned with protecting the substantive components of popular sovereignty? That is, by assessing whether legislation has restricted the ability to vote, the freedom to engage in political communication or the other incidents of popular sovereignty.Footnote 257 On this view, a Court should examine the constitutionality of legislation prohibiting entry — not by assessing whether it limits entry per se but instead by evaluating the effect of that restriction on the substantive components of political sovereignty.Footnote 258
One response can be made to this objection: that popular sovereignty is concerned both with the substantive exercise of power, and the conditions of its exercise. In McCloy, for example, the High Court referred to the Constitution as protecting the ‘equality of opportunity to participate in the exercise of political sovereignty’.Footnote 259 This language of ‘opportunity’ is significant. Literally defined, an opportunity refers to a ‘set of circumstances permitting or favourable to a particular action’ — a term, in the constitutional setting, which directs attention towards the conditions surrounding the exercise of a power.Footnote 260
In this context, it is appropriate to consider both the substantive incidents of popular sovereignty and the circumstances needed to ensure that this principle is protected. An implied freedom of entry is a necessary safeguard of the latter. Where legislation prevents entry, those laws always restrict the opportunity to exercise political sovereignty and thus require constitutional justification.Footnote 261
B Overbreadth Objection
A second objection critiques the scope of this implied freedom: an account based on popular sovereignty, it could be counterargued, leads to extreme consequences.
As presented above, an implication predicated on popular sovereignty suggests that any restriction on engagement in the political system is prima facie invalid.Footnote 262 Upon closer inspection, this principle may subject more than just restrictions on entering the country to constitutional scrutiny. For example, any term of imprisonment limits a person’s full participation in the political process.Footnote 263 Might any criminal incarceration, therefore, burden popular sovereignty and demand constitutional justification? If so, the argument I have advanced above is overbroad. For it is inconceivable that the Constitution ‘puts at risk (subject to considerations of proportionality) a significant range of routine Commonwealth and State laws’.Footnote 264
The response to this argument turns on the High Court’s understanding of popular sovereignty. Importantly, whilst the High Court has emphasised that the Constitution generally guarantees an equal opportunity to exercise political sovereignty, this principle is subject to exceptions. One such exception,Footnote 265 relevantly, is imprisonment following the adjudgment of criminal guilt.Footnote 266 Hence, in Roach, Gleeson CJ observed that ‘civic responsibility and respect for the rule of law are prerequisites to democratic participation’.Footnote 267
Importantly for present purposes, engaging in criminal conduct is readily distinguishable from leaving Australia. Of itself,Footnote 268 departing the country does not necessarily involve any ‘form of civil irresponsibility’ which forfeits one’s ability to return to Australia and participate in the political system.Footnote 269 So much was recognised by Quick and Garran in 1901, when observing that a person does not ‘lose their national character by ... sojourning in foreign countries’.Footnote 270
Viewed in this light, an implication based on popular sovereignty is not overbroad. On the contrary, the implication has a specific application — pertaining chiefly to laws which infringe one’s ability to enter the country.
C Originalism Objection
A final objection is one of interpretive principle: that recognising an implied freedom of entry involves impermissible judicial activism. This form of argument is made by Stoker and Beardow, who have criticised any recognition of an implied freedom of entry as unauthorised ‘constitutional alteration’.Footnote 271 If the Drafters wished to protect a freedom of entry, these authors suggest, they could have included that guarantee in the constitutional text at Federation.Footnote 272
This critique forms part of a larger debate around originalist and evolutionist theories of constitutional interpretation — questions which are beyond the scope of this article to resolve.Footnote 273 For present purposes, two points can be noted.
First, even if one adopts a strictly originalist viewpoint, it is not immediately obvious that a freedom of entry is inconsistent with the intentions of the Drafters. To the contrary, at least some Drafters suggested that the Constitution contains limits on Parliament’s capacity to exclude Australians from entering the country.Footnote 274 For example, in Potter v Minahan, Barton J (a Drafter of the Constitution) held it ‘open to doubt’ whether Parliament could ‘prohibit the entry of those who are subjects of the Crown born within our bounds, and who ... may be called Australian-born subjects of the King’.Footnote 275 Thus, an appeal to originalism need not automatically defeat a case against this implication.
Second, even if an implied freedom of entry is inconsistent with the Drafters’ intentions, the High Court has rejected that original understandings of the Constitution are determinative of constitutional implications. Hence, in Roach, the High Court recognised the right to vote as an implied component in the ‘evolution of representative government’ guaranteed by the Constitution,Footnote 276 even though laws restricting the adult franchise were commonplace at Federation.Footnote 277 Comparably, even if not envisioned at Federation, the High Court has recognised that popular sovereignty is now an embedded constitutional principle. Once that proposition is accepted, then certain implications are necessary to protect that principle — including, I contend, a freedom of entry.
VI Conclusion
In 2019, Justice Keane observed that ‘Australian judges have found the concept of “the people” to be a fertile source of constitutional doctrine’.Footnote 278 This article has posited one further point of fertility arising from the Constitution’s references to the people — an implied freedom of entry into Australia.
However, if an opportunity to develop this implication arises, care must be taken in establishing the basis for this freedom. As outlined in Part I of this article, early commentary surrounding this implication has relied upon the definition of non-alienage to ground a freedom of entry. Such attempts, I have contended in Part II, are misguided. The combination of unfavourable jurisprudence, as well as historical and conceptual difficulties, presents too weighty a challenge to accept this account.
Given these difficulties, Parts III and IV of this article have sketched out an alternative foundation for establishing this freedom: an implication derived from popular sovereignty. Although overlooked in recent scholarship, I have contended that establishing a freedom of entry on this basis is supported both in principle and authority.
One final query might simply be to ask whether the High Court will ever hear a case concerning this implication.Footnote 279 As Jeffries, McAdam and Pillai observe, excluding nationals from entering Australia is an extreme act, undertaken in rare circumstances.Footnote 280 Might the High Court simply never hear fully developed argument regarding an implied freedom of entry? On that question, we will simply have to wait and see. Before such a case arises, however, it is important to identify the constitutional foundation upon which a freedom of entry might be recognised. This article, it is hoped, fills that need.
VII Postscript
After this article was drafted, the High Court delivered two significant constitutional judgments: Benbrika v Minister for Home Affairs (No 2),Footnote 281 another case concerning the validity of citizenship-stripping laws,Footnote 282 and Jones v Commonwealth,Footnote 283 regarding Parliament’s power to revoke a conferral of citizenship where, amongst other things, a person has committed certain criminal offences.Footnote 284
It is worth briefly noting the judgments of Edelman J across these two cases, both of which are highly relevant for the topic of this article. In two separate opinions, Edelman J reiterated his support for the existence of the implied freedom. However, more significantly, his Honour explicitly connected this implied freedom to sections 7 and 24 of the Constitution. His Honour’s judgments, which mirror the argument made in this article, are thus the first time a High Court judge has directly grounded a freedom of entry on this basis.
In Benbrika (No 2), for example, his Honour commented that:
The power to revoke statutory citizenship does not imply a power to deprive a person of constitutional rights or freedoms. The ability to remain in Australia as a member of the Australian political community, and perhaps also ‘[t]he ability to move freely in and out of the country’, may be more fundamental than the constitutional ability to vote, recognised in ss 7 and 24 of the Constitution, which cannot be removed without substantial justification or reason.Footnote 285
Similarly in Jones, citing Zines, Edelman J posits that:
[The Commonwealth’s submission concerning the aliens power] is inconsistent with the requirement for substantial justification before particular core constitutional entitlements of the people of the Commonwealth could be removed. These core constitutional entitlements ... have been held to include the entitlement of the people of the Commonwealth not to be deprived of the ability to vote without substantial justification. Similarly, ... it has been said that there is a ‘strong case for the invalidity of expulsion’ of a person ‘included in the body of the sovereign people’ because to be ‘forced to leave, or be prevented from returning to, Australia would of course also impair the exercise of people's constitutional functions’.Footnote 286
The substance of Edelman J’s comments parallel the arguments made in this article in two respects. First, his Honour identifies that certain ‘core constitutional entitlements’ are reposed in the ‘people of the Commonwealth’,Footnote 287 those persons being ‘member[s] of the Australian political community’.Footnote 288 That statement of principle aligns with the High Court’s recognition of a popular sovereignty guarantee as identified in Part III.A of this article.
Second, Edelman J suggests that the freedom to enter Australia may be ‘more fundamental’ than other constitutionally guaranteed aspects of that political membership already recognised by the High Court,Footnote 289 including the right to vote.Footnote 290 For Edelman J, that fundamentality arises because of the importance of a person’s physical presence in Australia to the effective exercise of their ‘constitutional functions’ — a notion which mirrors the argument made in Part III.B of this article, which argued that a freedom of entry into Australia was necessary to guarantee all citizens an equal opportunity to exercise the various incidents of political sovereignty.Footnote 291
Of course, it remains to be seen whether other High Court Justices share this view. No other judge in Benbrika or Jones directly commented on this issue. Nonetheless, his Honour’s comments — the first time a judge has connected freedom of entry to sections 7 and 24 of the Constitution — are of immediate relevance.
Acknowledgements
This is a version of the author’s Honours thesis which was awarded the Blackburn Medal for Research in Law. I sincerely thank Ryan Goss, James Stellios, Thomas Dunbabin, Henry Palmerlee, Eloise Doherty and numerous other reviewers for their assistance on earlier drafts of this article. All views are my own.
