Citizenship and Language Tests in Australia: Issues of Law and History

Abstract

Any discussion of citizenship and citizenship tests in twenty-first century Australia needs to take account of the origins of the existing legal and jurisprudential structures. The first point to be noted is that the Australian Constitution makes no mention and gives no definition of an ‘Australian citizen’. In the context of the Australian Constitution, there are only ‘subjects’ and ‘aliens’. Citizenship in Australia is a product of statute law, not constitutional law. And, as such, it is very recent, having been introduced with the passage of the Citizenship and Nationality Act (later renamed the Australian Citizenship Act) in 1948. This legal, historical and jurisprudential reality establishes the framework within which future reform may take place. In order to understand the current law, we must understand why the current law exists and what implications it holds for the future. In this chapter, two questions are posed. First, in the continuing debate over citizenship and language tests, to what extent can it be argued that Australia is a‘prisoner of its past’? Secondly, what insights might be revealed if we examine the Australian experience comparatively with reference to other jurisdictions of the former British Empire? Through a detailed examination of the colonial origins of the laws and values informing contemporary Australian citizenship this chapter will shed new light on the legal, historical and jurisprudential dimensions of the current debate over citizenship and language tests.