Section 51(xxvii) of the Constitution of Australia

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Section 51(xxvii) of the Constitution of Australia (the immigration power) grants the Commonwealth Parliament the power to make laws with respect to "immigration and emigration." Historically, it was the principal legislative power in support of Australia's immigration scheme, which is now embodied in the Migration Act 1958 (Cth).

Constitution of Australia United Kingdom legislation

The Constitution of Australia is the supreme law under which the government of the Commonwealth of Australia operates, including its relationship to the States of Australia. It consists of several documents. The most important is the Constitution of the Commonwealth of Australia, which is referred to as the "Constitution" in the remainder of this article. The Constitution was approved in a series of referendums held over 1898–1900 by the people of the Australian colonies, and the approved draft was enacted as a section of the Commonwealth of Australia Constitution Act 1900 (Imp), an Act of the Parliament of the United Kingdom.

Parliament of Australia legislative branch of the Commonwealth of Australia

The Parliament of Australia is the legislative branch of the government of Australia. It consists of three elements: the Crown, the Senate and the House of Representatives. The combination of two elected chambers, in which the members of the Senate represent the states and territories while the members of the House represent electoral divisions according to population, is modelled on the United States Congress. Through both chambers, however, there is a fused executive, drawn from the Westminster system.

Immigration to Australia

Immigration to Australia began when the ancestors of Indigenous Australians arrived on the continent via the islands of Maritime Southeast Asia and New Guinea.

Contents

History

The High Court discussed the immigration power in R v Macfarlane; Ex parte O'Flanagan (1923). [1] The plaintiffs were British subjects who had been charged with sedition. While the prosecution was pending, they were summoned to appear before a Board constituted under s 8A of the Immigration Act 1901–1920 (Cth) to show cause why they should not be deported from Australia.

High Court of Australia Highest court in Australia

The High Court of Australia is the highest court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the states and territories, and the ability to interpret the Constitution of Australia and thereby shape the development of federalism in Australia.

Sedition is overt conduct, such as speech and organization, that tends toward insurrection against the established order. Sedition often includes subversion of a constitution and incitement of discontent towards, or resistance against established authority. Sedition may include any commotion, though not aimed at direct and open violence against the laws. Seditious words in writing are seditious libel. A seditionist is one who engages in or promotes the interest of sedition.

The plaintiffs contended that s 8A was not authorised by s 51(xxvii) of the Constitution on five grounds, three of which concerned the content of the migration power. (The other two grounds concerned federal judicial power and executive power.) The High Court dismissed all five grounds. First, it was established that British subjects were "immigrants" for the purpose of s 51(xxvii). [2] Secondly, the Court extended that proposition to temporary immigrants who did not intend to settle in Australia. Third, the Court adopted an expansive view of the power, holding that because the Parliament "had power to prohibit absolutely the entry into Australia of any person who is an immigrant," it could "prescribe the conditions on which an immigrant may be permitted to enter" (Knox CJ). [1] :530–533

Isaacs J (Rich J agreeing) agreed that the power was wide, reciting the history of the White Australia policy from before Federation of Australia to 1923. [1] :552–565, 578 Starke J also drew on the history of British immigration laws in adopting an expansive view of the power. [1] :579–583 Higgins J found that the plaintiffs were not entitled to relief for procedural reasons, but expressed doubt as to whether the immigration power should be construed so widely, noting the distinction between a law with respect to immigration and one with respect to immigrants. [1] :574

White Australia policy Australian policy that intentionally favoured immigrants to Australia from some other English-speaking and other European countries

The term White Australia policy was widely used to encapsulate a set of historical policies that aimed to forbid people of non-European ethnic origin, especially Asians and Pacific Islanders from immigrating to Australia. Governments progressively dismantled such policies between 1949 and 1973.

Federation A union of partially self-governing states or territories united by a central government that exercises power over them

A federation is a political entity characterized by a union of partially self-governing provinces, states, or other regions under a central federal government (federalism). In a federation, the self-governing status of the component states, as well as the division of power between them and the central government, is typically constitutionally entrenched and may not be altered by a unilateral decision of either party, the states or the federal political body. Alternatively, the federation is a form of government in which sovereign power is formally divided between a central authority and a number of constituent regions so that each region retains some degree of control over its internal affairs. It is often argued that federal states where the central government has the constitutional authority to suspend a constituent state's government by invoking gross mismanagement or civil unrest, or to adopt national legislation that overrides or infringe on the constituent states' powers by invoking the central government's constitutional authority to ensure "peace and good government" or to implement obligations contracted under an international treaty, are not truly federal states.

Current application

The Migration Reform Act 1992 (Cth) changed the Migration Act so that in terms, it was based on s 51(xix) (the aliens power) rather than the immigration power. [3] The scope of the power has therefore become less significant in contemporary Australian migration law. Although the scope of the power was the subject of submissions in Plaintiff S156 (the PNG solution case), [4] the Court's finding that the law was supported by the Aliens power made it unnecessary to consider the argument that the Migration Act 1958 when it relates to cancelling an Absorbed person visa was not supported by the Immigration power. [4] :paras [17] & [38]

The Regional Resettlement Arrangement between Australia and Papua New Guinea, colloquially known as the PNG solution, is the name given to an Australian Government policy in which any asylum seeker who comes to Australia by boat without a visa will be refused settlement in Australia, instead being settled in Papua New Guinea if they are found to be legitimate refugees. The policy includes a significant expansion of the Australian immigration detention facility on Manus Island, where refugees will be sent to be processed prior to resettlement in Papua New Guinea, and if their refugee status is found to be non-genuine, they will be either repatriated, sent to a third country other than Australia or remain in detention indefinitely. The policy was announced on 19 July 2013 by Australian Prime Minister Kevin Rudd and Papua New Guinean Prime Minister Peter O'Neill, effective immediately, in response to a growing number of asylum seeker boat arrivals. The then Opposition Leader Tony Abbott initially welcomed the policy, while Greens leader Christine Milne and several human rights advocate groups opposed it, with demonstrations protesting the policy held in every major Australian city after the announcement.

See also

Australian constitutional law

Australian constitutional law is the area of the law of Australia relating to the interpretation and application of the Constitution of Australia. Several major doctrines of Australian constitutional law have developed.

Section 51 of the Constitution of Australia grants legislative powers to the Australian (Commonwealth) Parliament only when subject to the constitution. When the six Australian colonies joined together in Federation in 1901, they became the original States and ceded some of their powers to the new Commonwealth Parliament. There are 39 subsections to section 51, each of which describes a "head of power" under which the Parliament has the power to make laws.

<i>Migration Act 1958</i> Act of the Parliament of Australia, currently registered as C2018C00337

The Migration Act 1958 is an Act of the Parliament of Australia that governs immigration to Australia. It set up Australia’s universal visa system. Its long title is "An Act relating to the entry into, and presence in, Australia of aliens, and the departure or deportation from Australia of aliens and certain other persons."

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The judiciary of Australia comprises judges who sit in federal courts and courts of the States and Territories of Australia. The High Court of Australia sits at the apex of the Australian court hierarchy as the ultimate court of appeal on matters of both federal and State law.

Section 51(i) of the Australian Constitution enables the Parliament of Australia to make laws about:

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References

  1. 1 2 3 4 5 R v Macfarlane; Ex parte O'Flanagan [1923] HCA 39 , (1923) 32 CLR 518 , High Court.
  2. ↑ Potter v Minahan [1908] HCA 63 , (1908) 7 CLR 277 at 288–289, 304–305, High Court. .
  3. ↑ Plaintiff M47/2012 v Director-General of Security [2012] HCA 46 at [81] ( Gummow J ), (2012) 251 CLR 1, High Court citing Re Patterson; Ex parte Taylor [2001] HCA 51 at [156] ( Gummow & Hayne JJ , (2001) 207 CLR 391, High Court.
  4. 1 2 Plaintiff S156/2013 v Minister for Immigration and Border Protection [2014] HCA 22 , (2014) 254 CLR 28, High Court.
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