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Can Indigenous People be Aliens?

Updated: Jan 30, 2021

In February this year, the High Court handed down its decision in the controversial case of Love v The Commonwealth; Thoms v The Commonwealth. The Court was called on to determine if Indigenous people could be “aliens” for the purposes of the alien power conferred by s 51(19) of the Constitution. A majority of four judges held Indigenous people cannot be aliens and are thus excluded from the application of the alien power. While the question in this case and its precedent value are narrow, this case once again raised issues of the place of Indigenous people in the Australian community and legal system.

The plaintiffs, Mr Love and Mr Thoms, were both born overseas and held foreign citizenships. However, they had both lived in Australia since childhood and identified as Aboriginal. Mr Thoms is a descendant of the Gunggari People through his grandmother, whilst Mr Love is a descendant of the Kamilaroi People through his great-grandparents. They were also both eligible for Australian citizenship but neither had pursued becoming citizens. After being convicted of offences with maximum sentences of 12 month of imprisonment or longer, they were deemed to have failed the character test under the Migration Act 1958 (Cth) and had their visas cancelled by the Department of Home Affairs.

All of the justices affirmed the two established principles that the alien power confers on Parliament: firstly, the power to define citizenship (as formal membership of the Australian political community) and secondly, that the definition of ‘alien’ is constitutionally constrained by the literal definition of the word. The differences in the seven judgments are fundamentally based on how Their Honours grappled with these competing principles in the case of Indigenous non-citizens.

The majority (Bell, Nettle, Gordon and Edelman JJ), recognised that the ancestral ties of Indigenous people to the lands of Australia transcends the concept of citizenship. Their Honours held that, in the words of Gordon J, the “deeper truth” of the recognition of land rights and interests in Mabo (No 2) was the acknowledgment of the laws and customs of Aboriginal societies. This common law recognition of Aboriginal societies was found to be relevant to constitutional interpretation and led to the majority’s finding that Indigenous people ‘belong’ to this land and therefore cannot come within the definition of ‘alien’. The plaintiff did not submit, and the majority did not accept, that indigeneity is equivalent to citizenship. Rather, Their Honours held that Mr Love and Mr Thoms are not citizens but are also not aliens. Since the power to deport aliens under the Migration Act is based on the alien power, the plaintiffs could therefore not be deported.

The minority (Kiefel CJ, Gageler and Keane JJ) did not consider it appropriate nor justified to exclude Indigenous people from the definition of alien. Unlike the majority, the minority were not willing to consider the position of Indigenous people as unique or special. Their Honours held the ordinary rules of citizenship have always applied to Indigenous people - from receipt of the common law, through the creation of a distinct Australian citizen and including in the circumstances of Mr Love and Mr Thoms. Accordingly, since the plaintiffs are not citizens, it is within the power of Parliament, under the alien power, to consider them aliens and deport them. These judges, in particular Kiefel CJ, were critical of the majority’s interpretation of Mabo (No 2). They found that Mabo (No 2) only recognised the rights and interests that gave rise to native title and not the laws and customs on which they are premised. The dissenting justices did not consider this interpretation of the common law arising from Mabo (No 2) as a sufficient basis for implying into the Constitution what Their Honours considered to be a race-based limitation of the ‘alien’ legislative power.'

The majority employed the tripartite test of indigeneity from Mabo (No 2), which requires biological descent from the Indigenous people, self-identification as a member of the Indigenous people, and recognition of this membership by elders or persons with traditional authority on such matters. The minority were critical of the use of this test as Their Honours felt it took the test out of its context of determining membership of a specific Indigenous group as in Mabo (No 2). Particular issue was also taken with the third limb of the test, which the minority felt granted an unacceptable degree of sovereignty to Indigenous groups, as the groups contributed to determining who are aliens and hence the scope of the alien power. On the other hand, the majority denied that their application of the test gave rise to any form of Indigenous sovereignty contrary to Mabo (No 2).

The Commonwealth did not dispute that Mr Thoms, as a native title holder, is an Indigenous person. However, Mr Love’s indigenous ancestry was much less clear. Particular concern for Mabo (No 2)’s third limb, requiring “mutual recognition…by the elders enjoying traditional authority”, was paid to Mr. Love as only one elder had provided this recognition. Ultimately, the question was remitted to the Federal Court for determination.

In the months following the decision, there were media reports of Indigenous people in similar circumstances as Mr Love and Mr Thoms still being detained in immigration detention.* In July, The Law Council of Australia published a summary of the response to their inquiries on this issue.** The Acting Minister advised the Council that the Department of Home Affairs had implemented a process to identify and assess the claims of individuals affected by the Love and Thoms decision. Mr Thoms was released from immigration detention soon after the High Court’s decision and Mr Love had his permanent residency reinstated prior to the High Court decision.

The 4:3 split in the judgment leaves this precedent vulnerable to challenge in the future. This is strengthened by the compelling criticism by the minority, particularly from Kiefel CJ, and the looming changes to the bench. Two judges in the majority, Nettle and Bell JJ, reach the constitutionally prescribed retirement age of 70 in December and March, respectively. Nettle J’s replacement, Justice Simon Steward, is being reported to be a “black letter” jurist. One could predict that His Honour may not look so deeply at s 51(19) and the Mabo (No 2) decision to extract an exclusion of Indigenous people from the definition of alien, should a challenge to the Love and Thoms decision come before the High Court in the coming years.

The decision in Love and Thoms stands for the principle that Indigenous people hold a unique position in, and connection to, the lands and community of Australia such that they cannot be aliens under s 51(19). The statements of the majority regarding the connection of Indigenous people to country are affirming and represent a willingness to develop and deepen what was recognised in Mabo (No 2). However, the decision is not broad constitutional recognition of the place and rights of Indigenous People in Australia. It is a great practical win for a few, and a symbolic win for more, however meaningful constitutional reform must continue to be fought for.

Image: Bar News

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