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 Labourers Act 1901 (Cth) 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.