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Aliens in their own land: 'Alien' and the rule of law in colonial and post-federation Australia

A thesis submitted for the degree of Doctor of Philosophy of the Australian National University
Judicial review Australian history Constitutional law High Court Social history Legislation Australia

This thesis argues that the ‘rule of law’ was not followed in colonial and post-federation Australia in relation to a fundamental principle of the common law.

According to the rule in Calvin’s Case (1608), no person born as a ‘subject’ in any part of the King’s dominions could be an ‘alien’. This was the legal position in Australia from the reception of English law until well after federation. In colonial and post-federation Australia the racial meaning of ‘alien’ was consistently used in political and legal contexts instead of its proper legal meaning. In legislation and parliamentary debates, cases and prosecutions, inter-colonial conferences and conventions it was employed to refer not merely to those who were ‘aliens’ under the common law but also to people regarded as ‘aliens’ in the broader or racial sense of the word, especially those of non-European background. Chinese and Indian settlers, Pacific islanders and even indigenous Australians were treated as ‘aliens’ in Australia even if under British law they were actually ‘subjects’ of the Crown and not ‘aliens’ at all in the accepted legal sense.

In the 1820s and 1830s the New South Wales Supreme Court thought it inconceivable that ‘barbarous’ Indigenous inhabitants could ‘owe fealty’ or allegiance to the British Crown, considering their legal position analogous to that of ‘foreigners’ or ‘strangers’. In debates on exclusionary legislation in the 1870s and 1880s, parliamentarians in the Australian colonies portrayed all Chinese settlers as ‘aliens’, despite acknowledging that many came from Hong Kong, the Straits Settlements or other British possessions. Immigrants from British India were generally treated the same way. Delegates to Australia’s constitutional conventions in the 1890s, including prominent legal figures, repeated this mistake. And in the 1900s Pacific islanders born in Australia as British subjects were deported as ‘aliens’ with the approval of the Australian High Court. The misuse of ‘alien’ in this case contributed to a defective judgment still cited today in support of the Commonwealth’s claims to extensive exclusionary power.

Between federation and the Second World War, Queensland’s dictation test legislation and industrial awards regulating various occupations provide many examples of the misuse and manipulation of the term ‘alien’ in a legal context. In prosecutions under these laws the word was used as a weapon against non-Europeans whether they were ‘aliens’ under the law or not. Commentators both in the early years of federation and in more recent times have failed to identify the misuse of ‘alien’– and have made the same error themselves. This mistake is critical because of the continued force of the term in Australian law. The Commonwealth’s sweeping power to define who shall be citizens of Australia and to exclude, detain indefinitely without trial and deport ‘aliens’ is still justified by reference to colonial and post-federation cases and constitutional convention debates where ‘alien’ was incorrectly used in its racial sense contrary to the rule of law.

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