No Place Like Home? Alienage, Popular Sovereignty and an Implied Freedom of Entry into Australia Under the Constitution

Abstract

Does the Constitution protect the ability of an Australian to enter the country? This article investigates that question. Whilst the Constitution provides no express guarantee of a citizen’s right to enter Australia, a series of recent cases — particularly Love v Commonwealth 1 and Alexander v Minister for Home Affairs 2 — give occasion to consider whether a freedom of entry forms an implied part of Australia’s constitutional framework. Early scholarly attempts to establish a freedom of entry have relied upon the definition of non-alienage to ground this implication. This article commences by reviewing the effect of the High Court’s recent alienage jurisprudence on these arguments. After concluding that fatal difficulties attend this approach, I investigate an alternative foundation for an implied freedom of entry: an implication drawn from a constitutional principle of popular sovereignty. Focusing on a recent thread of High Court jurisprudence which has placed an increasing emphasis on the constitutional protection afforded to popular sovereignty, I conclude that this alternative basis provides a viable foundation upon which an implied freedom of entry could be recognised in the Constitution.