High Court judgment puts Aboriginal Australians beyond “Alien” powers By Matthew Rismondo

High Court judgment put Aboriginal Australians beyond ‘alien’ powers

MATTHEW RISMONDO, ABORIGINAL ISSUES COMMITTEE

A landmark High Court decision has confirmed that “an Aboriginal Australian cannot be said to belong to another place”.

The High Court of Australia made a landmark decision in Love v Commonwealth of Australia and Thoms v Commonwealth of Australia on 11 February. By a four to three majority, the High Court decided that Aboriginal Australians who are born overseas and are not citizens of Australia are not within the reach of the “aliens” power in section 51 (xix) of the Constitution 1 .

BACKGROUND

The Plaintiffs, Daniel Love and Brendan Thoms, were both born overseas with one Aboriginal Australian parent and both identify as Aboriginal Australian. Mr Thoms was born in New Zealand but had resided permanently in Australia since November 1994 and is a descendant of the Gunggari People. Mr Love was born in the independent State of Papua New Guinea but has been a permanent resident of Australia since 1984 and is a descendant of the Kamilaroi people. Neither Mr Love or Mr Thoms were Australian citizens and retained citizenship of their respective birth countries.

The Plaintiffs had served sentences in Australia for separate and unrelated offences. After their convictions, both Plaintiffs’ visas were cancelled by delegates of the Minister for Home Affairs pursuant to section 501 (3A) of the Migration Act 1958 (Cth). Following this, the Plaintiffs were detained in immigration detention under section 189 of the Migration Act 1958 (Cth) on suspicion of being “unlawful noncitizen[s]”.

DECISION

The key fi ndings from the majority, Bell, Nettle, Gordon and Edelman JJ, which led to their decision are as follows: • there is a special and unique connection between Aboriginal and Torres Strait Islander peoples and the land and waters of Australia, as recognised in Mabo v Queensland [No 2] 1992 175 CLR 1. To put it simply, that Aboriginal Australians are in a unique position in Australia; 2 • the opposite of “alien” is not “citizen” 3 , but in fact is “non-alien” 4

or a “belonger” to the political community; 5 • the two common tests of citizenship, birth or descent, are not the only examples of membership of a political community; 6

and • the common law recognises the unique spiritual connection between Aboriginal Australians and their traditional lands. That is not in harmony with the idea that an Aboriginal Australian can be described as an “alien” to that land. 7 The dissenters, Kiefel CJ, Gageler and Keane JJ, held that race is irrelevant to the questions of citizenship and membership of the Australian body politic, 8

and allowing individuals and their communities to determine Aboriginal status, when looking at whether that person is a non-alien, is a concession of an aspect of sovereignty. 9 It would confer on Native Title bodies a constitutional capacity beyond that of State parliaments 10

and it would leave the status of alienage under the subjective determination of individuals, dependent upon their actual self-identifi cation and acceptance by others under the three-fold test. 11 On the facts, Mr Thoms was found to be a recognised member of an Aboriginal community because his status as a native title holder was undisputed. However, the facts in respect to Mr Love’s Aboriginality were unclear and the question of his status has been referred to the Federal Court. 12

One of the most delicate constitutional questions of recent years is the Aboriginal identity question and differential treatment under the law and the Constitution. This decision dealt directly with these issues and, although divided in their fi ndings, the majority consensus was summarised by Bell J, who stated that “Aboriginal Australians (understood according to the tripartite test in Mabo [No 2]) are not within the reach of the ‘aliens’ power conferred by section 51 (xix) of the Constitution” 13 . While the judgments are likely to have a relatively narrow direct effect, the majority judgments have reopened the broader questions of Aboriginal identity and the implications of the High Court’s acknowledgement in Mabo No 2 of the connection of Aboriginal and Torres Strait Islander people to their lands and waters. By directly connecting the question of the Australian State’s obligation to protect Aboriginal people from alienage to this connection which antedated the Crown’s acquisition of sovereignty, it has also potentially revived the question of the Crown’s fi duciary obligations to Aboriginal people. 14

And that is enormously important. B

Endnotes 1 Commonwealth of Australia Constitution Act 1900 (Cth) (“the Constitution”). 2 Love v Commonwealth; Thoms v Commonwealth [2020] HCA 3 at (per Bell J at [70] – [74], Nettle J at [262], [268]-[272], Gordon J at [333], [335], [357], [368] and Edelman J at [447], [452], [454], [466]). 3 Ibid at [394] 4 Ibid at [295], [304]. 5 Ibid at [394], [396], [437] 6 Ibid at [66], [373], [435], [444]. 7 Ibid at [71], [270], [272], [454]. 8 Ibid, at [31], [44], [126], [133], [147], [178], [181]. 9 Ibid at [25], per Kiefel CJ. 10 Ibid at ([137] in the reasons of GagelarJ 11 Ibid [196] per KeaneJ . Edelman J in the majority acknowledged this but pointed out that it equally applies to the race power and the extent of a legislative power always extends to exogamous matters. .[457] 12 Ibid at [287]-[288]. 13 Ibid at [81]. 14 [280] per Nettle J and [364] GordonJ