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Aliens in their own land. 'Alien' and the rule of law in colonial and post-federation Australia

Prince, Peter Herman

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This thesis argues that the ‘rule of law’ was not followed in colonial and post-federation Australia in relation to a fundamental principle of the common law. According to the rule in Calvin’s Case (1608), no person born as a ‘subject’ in any part of the King’s dominions could be an ‘alien’. This was the legal position in Australia from the reception of English law until well after federation. In colonial and post-federation Australia the racial meaning of ...[Show more]

dc.contributor.authorPrince, Peter Herman
dc.date.accessioned2016-05-30T05:46:03Z
dc.date.available2016-05-30T05:46:03Z
dc.identifier.urihttp://hdl.handle.net/1885/101778
dc.description.abstractThis thesis argues that the ‘rule of law’ was not followed in colonial and post-federation Australia in relation to a fundamental principle of the common law. According to the rule in Calvin’s Case (1608), no person born as a ‘subject’ in any part of the King’s dominions could be an ‘alien’. This was the legal position in Australia from the reception of English law until well after federation. In colonial and post-federation Australia the racial meaning of ‘alien’ was consistently used in political and legal contexts instead of its proper legal meaning. In legislation and parliamentary debates, cases and prosecutions, inter-colonial conferences and conventions it was employed to refer not merely to those who were ‘aliens’ under the common law but also to people regarded as ‘aliens’ in the broader or racial sense of the word, especially those of non-European background. Chinese and Indian settlers, Pacific islanders and even indigenous Australians were treated as ‘aliens’ in Australia even if under British law they were actually ‘subjects’ of the Crown and not ‘aliens’ at all in the accepted legal sense. In the 1820s and 1830s the New South Wales Supreme Court thought it inconceivable that ‘barbarous’ indigenous inhabitants could ‘owe fealty’ or allegiance to the British Crown, considering their legal position analogous to that of ‘foreigners’ or ‘strangers’. In debates on exclusionary legislation in the 1870s and 1880s, parliamentarians in the Australian colonies portrayed all Chinese settlers as ‘aliens’, despite acknowledging that many came from Hong Kong, the Straits Settlements or other British possessions. Immigrants from British India were generally treated the same way. Delegates to Australia’s constitutional conventions in the 1890s, including prominent legal figures, repeated this mistake. And in the 1900s Pacific islanders born in Australia as British subjects were deported as ‘aliens’ with the approval of the Australian High Court. The misuse of ‘alien’ in this case contributed to a defective judgment still cited today in support of the Commonwealth’s claims to extensive exclusionary power. Between federation and the Second World War, Queensland’s dictation test legislation and industrial awards regulating various occupations provide many examples of the misuse and manipulation of the term ‘alien’ in a legal context. In prosecutions under these laws the word was used as a weapon against non-Europeans whether they were ‘aliens’ under the law or not. Commentators both in the early years of federation and in more recent times have failed to identify the misuse of ‘alien’– and have made the same error themselves. This mistake is critical because of the continued force of the term in Australian law. The Commonwealth’s sweeping power to define who shall be citizens of Australia and to exclude, detain indefinitely without trial and deport ‘aliens’ is still justified by reference to colonial and post-federation cases and constitutional convention debates where ‘alien’ was incorrectly used in its racial sense contrary to the rule of law.
dc.language.isoen
dc.subjectalien
dc.subjectalien races
dc.subjectcoloured aliens
dc.subjectcolored aliens
dc.subjectConstitution section 51(xix)
dc.subjectsection 51(xxvi)
dc.subjectsection 51(xxvii)
dc.subjectrule of law
dc.subjectBritish subject
dc.subjectnationality
dc.subjectlegal status
dc.subjectindigenous Australians
dc.subjectChinese Australians
dc.subjectBritish Indians
dc.subjectPacific islanders
dc.subjectdictation test legislation
dc.subjectconvention debates
dc.subjectSamuel Griffith
dc.subjectHenry Parkes
dc.subjectLowe Kong Meng
dc.subjectSee Chin
dc.subjectnaturalisation
dc.subjectnaturalization
dc.subjectToy v Musgrove
dc.subjectMusgrove v Chung Teong Toy
dc.subjectRobtelmes v Brenan
dc.subjectSugar Cultivation Act 1913
dc.subjectStation Hands Award 1917
dc.subjectSugar Field and Sugar Mill Workers and Cooks Award
dc.subjectLeases to Aliens Restriction Act 1912
dc.subjectBanana Industry Preservation Act 1921
dc.subjectPacific Island Labourers Act 1901
dc.subjectNorthern Territory Mining Act 1903
dc.subjectFirearms and Guns Act 1931
dc.titleAliens in their own land. 'Alien' and the rule of law in colonial and post-federation Australia
dc.typeThesis (PhD)
local.contributor.supervisorRubenstein, Kim
local.contributor.supervisorcontactkim.rubenstein@anu.edu.au
dcterms.valid2015
local.type.degreeDoctor of Philosophy (PhD)
dc.date.issued2015-11
local.contributor.affiliationCollege of Law, The Australian National University
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