Future Citizens or Intergenerational Aliens?

Abstract

In the context of the High Court’s alienage jurisprudence, this article examines whether future generations would fall beyond a constitutional concept of alienage, or within a claimed constitutional concept of citizenship or even nationality. Australian future generations as future citizens are critical to the endurance of the Australian polity. In this article, their constitutional relevance, but definitional ambiguity, is first overviewed, and then the limits of Australian citizenship and alienage are canvassed. This is expanded by examining the tensions between legal versus normative citizenship (dubbed the ‘citizenship dilemma’), and statutory citizenship versus constitutional alienage. The analysis then proceeds to the High Court’s identification, and later rejection, of a ‘non-citizen nonalien’ status. The contested nature of this status prompts the suggestion that it could be formally conscripted to describe future generations’ ‘non-citizen non-alien’ character. The value of this conscription is underlined by considering a Future Citizenship Scenario derived from High Court dicta – would the High Court allow non-aliens to be deprived of their nationality? Finally, by highlighting the Constitution’s reference to ‘the people of the Commonwealth’, and focusing on the claimed constitutional concept of citizenship, this article questions the relevance of constitutional concepts of alienage, citizenship and nationality to Australian future generations as future citizens.