First posed, the question sounds insane: can the Australian government deport an Aboriginal person? The High Court has answered it, in a decision as significant as Mabo.
Key clarification: this is not about Aboriginal or Torres Strait Islander people who are Australian citizens. It is about those who are not.
Daniel Love and Brendan Thoms identify as Aboriginal Australians. Love was born in, and is a citizen of, Papua New Guinea — Thoms, likewise, in New Zealand. They have lived in Australia since childhood, but never obtained citizenship.
Both have criminal assault convictions, triggering the Migration Act power to deport them. They asked the High Court to declare that they cannot be deported. Deportation derives from the Commonwealth’s constitutional power to make laws with respect to “aliens”. The issue was whether an Aboriginal non-citizen can be an alien. If not, they are outside Border Force’s reach.
The High Court split 4:3. The majority (Justices Bell, Nettle, Gordon and Edelman) ruled that an Aboriginal Australian cannot be an alien to Australia.
The seven judges’ opinions clearly (and eruditely) reflect the fault lines in contemporary Australian thought about the status of Aboriginal people in our social and political framework.
The presenting question itself will trigger two conflicting instincts: one says of course, it cannot be possible that an Aboriginal Australian could fall outside the protection of our nation state; that’s a bizarre suggestion.
The other replies no, it’s not weird. What’s weird is the idea that, by virtue of their race, one group of people can attain a legal status that nobody else gets, no matter the history that brought us here.
The judges agreed on a few things. The constitution does not define who is an “alien”; that is up to the parliament. However, it cannot expand the definition to include a person who could not possibly fit within it. For example, a person born in Australia to two Australian parents cannot be an alien. But can an Aboriginal person born overseas?
Central in the debate was Mabo, the 1992 High Court case that recognised native title and the Aboriginal sovereignty over Australia’s land and waters that pre-dated 1788.
Did it carry an even deeper meaning? Having recognised 40,000-plus years of legal ownership, did our law carry that idea further to entrench a permanent intergenerational status for Aboriginal people derived from their connection to country?
The minority judges (Chief Justice Kiefel, Justices Gageler and Keane) were, as Gageler said, “not unmoved by growing appreciation of the depth of cultural connection to country and of the extent of historical dispossession of Aboriginal and Torres Strait Islander peoples”. No comfort for the revisionists there.
But they were unmoved by the legal arguments, and troubled by the idea of bringing “race” into the conversation. Gageler’s objection was “one of principle to the judicial creation of any race-based constitutional distinction”.
That might seem odd, since the same constitution still includes an explicit race power and, in its original form, treated Aboriginal people like a temporarily inconvenient historical residue whose dying-off should be left to the states to quietly manage.
I can empathise with the minority opinion, because there is something disquieting about the idea of exceptional status conferred by virtue of race (especially since I think race is a rubbish concept).
There’s no definitive way of reconciling the truth of Aboriginal connection to country and its historical dispossession, with the desirable principle of absolute equality before the law. The minority went with the latter, resting its logic on the absence of a constitutional warrant for giving Aboriginal people a special deal.
To which the majority replied, in summary: piffle. The legal arguments are long, but at the base is a question of human justice. Give it up to Justice Gordon:
The fundamental premise from which [Mabo] proceeds — the deeper truth — is that the Indigenous peoples of Australia are the first peoples of this country, and the connection between [them] and the land and waters that now make up the territory of Australia was not severed or extinguished by European ‘settlement’.
Critically, that connection to country “is not a species of what European law understands as ownership or possession. It is a connection with land where the land ‘owns’ the people and the people are responsible for the land”.
That reciprocal relationship of obligation is what we call allegiance. From 1788, all Aboriginal people became British subjects. On federation in 1901, they became part of the Australian people. Throughout, their original connection continued. It would be “astonishing”, Edelman said, to push any of them off the team now.
The end result is small, in that it only affects people who are not citizens but resident here, and who can establish that they are Aboriginal or Torres Strait Islander (which is another story).
It is also large, because it takes Mabo’s rejection of terra nullius and recognition of prior ownership, and extends the idea of connection to country to a spiritual, cultural and legal level that now lives within the Australian constitution.
Whether or not we end up writing words of recognition into the constitution, the High Court has now confirmed that they’re already there, in between the lines. Like I said, huge.
“I can empathise with the minority opinion, because there is something disquieting about the idea of exceptional status conferred by virtue of race (especially since I think race is a rubbish concept).” Race is a rubbish concept but heritage and inheritance are not. It’s discouraging though, in the extreme, that our Attorney-General sees it as a priority to find another way of legislating this tiny few people out of the country of their ancestors, the country of their mothers, the country where they grew up. As if we didn’t have more urgent matters to deal with than how to expel the tiniest possible minority, Indigenous Australians not born in Australia, to a country they don’t know.
Further to the above, a petition to the authorities in PNG and NZ requesting cancellation of these men’s citizenship might be in order. That would give Porter and Dutton nowhere to deport them to.
Citizenship is a constitutional right in Papua New Guinea to those born there before Independence day who have 2 grandparents who are Papua New Guineans.
I don’t actually have a problem with different people being treated differently under the law. We already recognise Aboriginal cultural law in some jurisdictions. Given the fact that Aboriginal people were robbed of their land and suffered the cultural and economic consequences of that theft ever since I think some unequal treatment before the law is warranted if it restores what has been lost in some measure.
I too thought the implications are vast when I read it yesterday.
Nevertheless it says more than the closing the gaps failure that it came down to the vote of one whitefella to define who a blackfella is.
I see that Porter has already said that the gummint will legislate an alternative way to get around this decision to deport the “not very large” group of Aboriginal non-citizens who have committed crimes in another way.
I which case it may be necessary to launch a new court case to argue that a person not subject to the “aliens” power in the Constitution cannot be deprived of citizenship.
Thanks Michael for another fine article explaining a difficult matter in a succinct and clear manner.
Yes indeed. Michael, here, and Professor Anne Twomey, in other places, have provided us with clear explanations. Minister Tudge? – not so much.
I would like to add my thanks.
Mine too! Mr Bradley always helps my very small brain understand some very large concepts!
Sadly it does not address the issue of deporting anyone who has lived in Australia since childhood but is eligible for dual citizenship by ancestry or actual country of birth. It results in an unacceptable, cruel and totally inhumane double punishment for even petty criminals. They may well not even speak the language or have any family support there. They are Australia’s home grown criminals and we should be responsible for them.
Agree completely. Anyone who has lived in Australia since childhood will regard him or herself as Australian. Often they do not know they are not citizens, not realising they have to fill out a form and apply, and only find out when Dutton wields the pen to deport them.
There needs to be a public discussion about citizenship generally, what means, who should have it and the circumstances in which people are deprived of it. Dutton has far too much power to deport people who are not citizens and to deprive people of their citizenship. Laws have been changed without public discussion and, really, without public consent. And sadly, supported by Labor.
And the issue of washing our hands of poor fools who went to join ISIS. Some country has to deal with them, and if they grew up here it should be us.
I could not agree more and the Australian children currently left in the Syrian refugee camps by our government is a national disgrace and a human rights violation. And- yep- we have to deal with our own troubled residents, not deport the problem/s. (And, always, how much of our money does the government waste on these ideological battles?)…..
Huge indeed!
And where are the mainstream media? As with coverage of Mabo 25+ years ago, missing in action. Page 3 of the AFR. Invisible in the The Age and Herald Sun print editions. Don’t worry, page three of the latter two tells me that Kate and WIlls are coming! It’s no better on line.
Maybe Andrew Bolt will launch a tirade tomorrow.