Membership of the constitutional ‘people’ in Australia is informed by a combination of many factors. In this paper Elisa Arcioni will explore the territorial dimensions. First, what is the outer boundary of the relevant territory for the purposes of membership? Defining the outer boundary is essential for seeing the collective whole of ‘the people’. That boundary can change over time, with consequential impacts upon which individuals at any moment in time are part of ‘the people’. Second, what is the influence of sub-national territorial boundaries on the contours of membership? Australia is a federal nation composed of six Original States, as well as a series of sub-national Territories. Identifying to which sub-national territory one belongs determines security of status and placement in a constitutional hierarchy of membership.
The first two components are typical observations regarding the bounded nature of nation states, and of federal states in particular. More interesting is to interrogate what kinds of connection to territory found a claim to membership and what else is revealed by considering this issue. After surveying several ways territorial connection is understood in Australian constitutional law, Elisa Arcioni will focus in particular on the way in which the High Court reasoned that Aboriginal Australians have a claim to membership on the basis of their sui generis connection to Country.
The author will outline her tentative insights. The central one is that relational dimensions of membership come to the fore. Flowing from that is how a focus on territorial connections opens up fraught questions of what is community, to what extent individuals can determine their own membership and how the law struggles to address the existential realities and complexities of membership and exclusion.