Book contents
- Frontmatter
- Contents
- Table of cases
- Table of statutes
- Preface to the second edition
- Acknowledgments
- 1 Historical context to migration
- 2 Immigration control: an overview
- 3 Basic migration legislation and policy
- 4 The visa system and application procedures
- 5 Family and interdependency migration and other Australia-based visas
- 6 Business and investment visas
- 7 Skill-based visas
- 8 Temporary visas
- 9 Miscellaneous visas
- 10 Common visa requirements
- 11 Compliance: unlawful non-citizens, removal and deportation
- 12 History of the refugees convention and definitional framework
- 13 Refugee and humanitarian visas: the statutory structure
- 14 Convention grounds
- 15 Persecution
- 16 Well-founded fear of persecution
- 17 Limits on protection of refugees – cessation, exclusion exceptions and protection by another country
- 18 Time for a fundamental re-think: need as the criterion for assistance
- 19 The determination and review process for migration and refugee decisions
- Index
2 - Immigration control: an overview
Published online by Cambridge University Press: 05 June 2012
- Frontmatter
- Contents
- Table of cases
- Table of statutes
- Preface to the second edition
- Acknowledgments
- 1 Historical context to migration
- 2 Immigration control: an overview
- 3 Basic migration legislation and policy
- 4 The visa system and application procedures
- 5 Family and interdependency migration and other Australia-based visas
- 6 Business and investment visas
- 7 Skill-based visas
- 8 Temporary visas
- 9 Miscellaneous visas
- 10 Common visa requirements
- 11 Compliance: unlawful non-citizens, removal and deportation
- 12 History of the refugees convention and definitional framework
- 13 Refugee and humanitarian visas: the statutory structure
- 14 Convention grounds
- 15 Persecution
- 16 Well-founded fear of persecution
- 17 Limits on protection of refugees – cessation, exclusion exceptions and protection by another country
- 18 Time for a fundamental re-think: need as the criterion for assistance
- 19 The determination and review process for migration and refugee decisions
- Index
Summary
Constitutional foundations
The Commonwealth Constitution has provided the Australian Parliament with the power to make laws about immigration and emigration in section 51(xxii) and the power to make laws about naturalisation and aliens in section 51(xix). Argument has also been made that a third source of constitutional power to legislate about migrants might be found in section 51(xxix) relating to external affairs. The Australian High Court has generally given those powers a broad interpretation on the basis that it is an inherent right of sovereign states to determine when, or if, a non-citizen (generally referred to as an ‘alien’ as a consequence of the language of section 51(xix)) of the state can enter the country, the conditions under which that person can remain and the circumstances that require departure.
Thus, when the appellant in Robtelmes v Brenan sought to have the order for his deportation pursuant to section 8 of the Pacific Islanders Labourer's Act 1901 overturned on the basis that there was no constitutional power to deport him, he did not attract the sympathy of the Court, notwithstanding his argument that he should at least be returned to the place from which he was recruited as otherwise he would be imprisoned.
- Type
- Chapter
- Information
- Migration and Refugee LawPrinciples and Practice in Australia, pp. 16 - 23Publisher: Cambridge University PressPrint publication year: 2008