Guest Editors’ Introduction: IACL’s New Research Group on Membership and Exclusion under Constitutions

Amelia Simpson & Elisa Arcioni

University of Sydney & Australian National University

We are excited to introduce the new IACL research group on Membership and Exclusion under Constitutions  and to share, in this Symposium, some of its members’ current work. The research group was conceived as a focal point for scholarly inquiry into constitutional identity; particularly, the ways in which legal categories of membership and exclusion, wielded by judges, lawmakers and executive actors, shape the conception of a nation-state’s ‘people’. More simply, the group is interested in the role of constitutions in defining communities.

In this introductory blog post, we: give an overview of the Research Group, inviting scholars to contact us to join our network; provide a taste for how issues of membership and exclusion play out in our own jurisdiction – Australia – and outline the forthcoming blog posts from some of the members of the group.

Overview of the research group – a self-constituting community

This research group is a network for scholars exploring the ways in which constitutions can, do, and (whether they) should perform the role of defining community. While the group has a legal focus, we include attention to how constitutional law is situated in relation to, and works with, other disciplines and sub-disciplines within and outside law. We welcome research addressing how constitutional law coexists with other systems of law and knowledge and how questions of membership and exclusion are or are not allocated as constitutional questions. 

Research issues fitting within this group include (but are not limited to):

• Foundational questions of whether constitutions identify constitutional community – and if so, how? Should constitutions play a role in identifying the constitutional community – why/why not?

• The institutional context and location of power concerning inclusion and exclusion (citizenship, migration, national identity, federalism).

• The role of supranational integration in redrawing both the lines and meaning of constitutional belonging.

• The impact of membership of more than one nation state (for example, through dual/multiple nationality), and indigenous identity, on concepts of constitutional identity.

• The potential disjuncture between formal inclusion/exclusion and social identity or substantive dis/connection to a nation-state.

• The relationship between legal status, formal inclusion or community membership and: access to substantive rights including residence and political rights, claims of sovereignty, and territory.

The research group is open to scholars focusing on these issues from the perspective of a particular state (or supra- as well as sub-national levels of governance) or set of states; from a comparative perspective, across time or space; or from philosophical, theoretical or doctrinal perspectives.

The purposes of the research group include:

1.       Providing networking opportunities for scholars in the field

2.       Mentoring junior scholars

3.       Creating workshop opportunities for works in progress

4.       Developing scholarship for publication and dissemination

We are a self-constituting and decentralised community, in which all members can propose and host events, contribute their scholarship for dissemination, and highlight events and publications of interest to the group through a quarterly email newsletter.

Please contact us to find out more about the group, join our email newsletter and become involved in our activities! Contact details are at the end of this post.

A taste of Australian constitutional identity issues

In Australia, the jurisdiction best known to us, we are at a pivotal moment in addressing how the Constitution defines the community.

At the founding of the Australian federation in 1901, Australia’s First Peoples, members of the oldest living cultures in the world, were denied full membership of the newly constituted nation. The Constitution was silent as to the historical reality of dispossession and colonial violence. At the same time, the Constitution allowed for a continuation of colonial racial restrictions to entry, which became known as the ‘White Australia policy’. The specific vehicles of explicit racial exclusion have since been dismantled, but there are now calls for the Constitution to both prevent a return to blatant discrimination and to provide a vehicle for the specific claims of Indigenous Australians to be recognised. In addition, the reality of a very multicultural Australia sits uneasily with the constitutional prohibition of dual nationals sitting in the federal Parliament.

Our national legislature has the opportunity to respond to a proposal by Indigenous leaders to make changes to the text of our Constitution in order to engage with the fundamental question of how to recognise Indigenous Australians and provide them with a Voice in the national political system, a process for Truth to be told about our history, and begin the process of Treaty-making. Deep questions of identity emerge in this opportunity, as well as contestation as to the capacity of the Constitution, and the law more generally, to serve as a suitable vehicle for such change and recognition of identity.

The Australian setting also illustrates another dimension to the study of membership and exclusion under constitutions – the role that state institutions, through their decisions and choices, play in constructing the ‘people’. The High Court of Australia, the guardian of the Australian Constitution, has engaged in doctrinal innovation to extend constitutional protection to groups at risk of exclusion at the hands of the legislative and executive branches.

Twice in the last fifteen years the High Court has overturned legislative changes to the national franchise that sought to exclude identified groups of citizens. In doing so, the Court imposed a proportionality test to overturn decisions of the legislature, finding that restrictions imposed on the franchise were not justified in a way compatible with the maintenance of the system of government. These decisions were highly controversial, with critics insisting that the Court had innovated in defiance of settled norms of parliamentary supremacy.

Another judicial innovation relating to exclusion concerns the framing of constitutional constraints upon executive detention. Australia’s ruthless border protection regime has gained it international notoriety in recent times. A cornerstone of that regime has been the mandatory detention of ‘undocumented maritime arrivals’ – as the relevant legislation describes asylum seekers arriving by boat. A steady stream of challenges to these detentions have made their way to the High Court. While in most cases the Court has upheld the validity of particular instances of detention, it has nevertheless used such cases to articulate broad constitutional limits upon the executive’s capacity to detain. It has done so by defining the ‘judicial power’ conferred by the Australian Constitution in a way that makes the ordering of punitive detention an exclusively judicial function. The flip side of this position has been that the executive government has no power to engage in detention that can be characterized as punitive.

Thus, we see that in one national jurisdiction – Australia – questions of membership and exclusion under a constitution range from deep political and historical controversies regarding the place of particular groups within the community, to questions of institutional and inter-institutional capacity and interaction.

The forthcoming components of this blog symposium

Knowing that membership and exclusion are issues of great resonance in Australian constitutional law, we are eager to learn about these issues as they present in other jurisdictions. This blog symposium is just the beginning of what we know will be a long and fruitful international collaboration. Forthcoming posts include contributions from a judicial officer, a doctoral student, as well as established scholars from around the world. We hope you enjoy each post and, in seeing the breadth and extent of the work of this group, you consider joining us.

Elisa Arcioni is Associate Professor at University of Sydney Law School.

Amelia Simpson is Associate Professor at Australian National University College of Law.

For more information or to join the Research Group’s email newsletter, contact the authors at: Elisa.arcioni@sydney.edu.au and/or Amelia.simpson@anu.edu.au

Suggested Citation: Amelia Simpson & Elisa Arcioni, ‘Guest Editors’ Introduction: IACL’s New Research Group on Membership and Exclusion under Constitutions’ IACL-AIDC Blog (17 June 2019) https://blog-iacl-aidc.org/membership-and-exclusion/2019/6/17/guest-editors-introduction-iacls-new-research-group-on-membership-and-exclusion-under-constitutions

Publication Schedule

Monday 17 June:

Elisa ARCIONI and Amelia SIMPSON – ‘Guest Editors’ Introduction: IACL’s New Research Group on Membership and Exclusion under Constitutions’

Wednesday 19 June:

Karen KONG – ‘Applying the Right to Family in the Immigration Context of Hong Kong’

Friday 21 June:

Carlos BERNAL – ‘Two Arguments against the Theory of the Constituent Power’

Monday 24 June:

Valentina CARLINO – ‘A Common Policy? The Calling into Question of the European Asylum System’

Wednesday 26 June:

Ruvi ZIEGLER – ‘Absent-present membership? EU citizens in Brexit Britain’ 

Friday 28 June:

Rayner THWAITES – ‘“Disallegient conduct” and citizenship stripping: Recent Australian developments’