High court’s ‘alien’ decision is not surprising – but it won’t be the end of the story | Tony McAvoy | Opinion


Yesterday the high court of Australia decided by a four-to-three majority that Aboriginal Australians are not capable of being “aliens” under the Australian constitution.

The constitution sets out the subject matter about which the commonwealth parliament can make laws. One of those subjects is “naturalisation and aliens”. The Migration Act 1958 is the legislation under which the government deals with aliens. That act provides that Peter Dutton, the home affairs minister, must cancel the visa of any person who is convicted of a criminal offence for which the sentence is 12 months imprisonment or more.

Brendan Thoms was born in New Zealand and is a member or citizen of the Gunggari nation, a native title holder. The Gunggari people have had their native title recognised by the federal court. Daniel Love was born in Papua New Guinea and says he is a member of the Kamilaroi nation. Both have been convicted of criminal offences and had their visas cancelled by the minister. Both were placed in immigration detention upon their release from jail. Neither had made any application to become naturalised Australians.

Love and Thoms challenged their deportation on the basis that even though they were not citizens of Australia they could not be aliens. They went to the high court and argued that the constitution did not apply to Aboriginal Australians when it referred to aliens.

The court has previously considered the term alien and its meaning in relation to the constitution and the Migration Act and found that an alien is a person who belongs to another place.

Love and Thoms argued that they, as Kamilaroi and Gunggari people respectively, have a unique connection with their lands that comes from the continued existence of those Aboriginal nations and their laws. This means that they belong to their respective parts of Australia, even though they are not citizens of Australia under the standard definition of that term. A majority of the high court agreed with them.

The case highlights an unresolved crevice in Australia’s legal foundations. According to the 1992 Mabo decision, at the moment governor Arthur Phillip arrived at Botany Bay, the whole of eastern Australia immediately became the sovereign territory of the British crown. This meant that the crown became the ultimate law-making entity which entitled it to establish governments, police forces, and to make decisions about land and resources, among other things.

Under the British law in operation in 1788 the British could only acquire sovereignty over other people’s lands by treaty or conquest, or by “settlement” where it thought that the natives were so low on the scale of human development that the land could be treated as unoccupied. The British crown and Australian governments have to this day relied upon this notion of settlement as the legal basis for acquisition of Australia.

In the Mabo decision the high court reminded us that it could not interfere with declaration that the British had acquired sovereignty by “settlement” of Australia, because the high court is a product of that sovereignty. The Mabo decision does not explain how it is that the doctrine of terra nullius can be overturned but the acquisition of sovereignty over other people’s territories by “settlement” can live on. The two positions are incompatible.

There have been more than 400 cases where the federal court has ruled that native title exists, including the Gunggari case. Almost all the rulings have been with the consent of the relevant state or territory. In each case connection to the land by an Aboriginal society with its own legal system had to be proved.

The Love and Thoms judgment tells us that if you are an Aboriginal person who is a member of a group that has that connection, you cannot be classified as an alien who belongs to another place.

Moreover, the judgment reminds us that the high court is jammed. It cannot find that Aboriginal nations have maintained a form of sovereignty over their respective portions of the Australian lands and waters. But it appears, in its present form at least, to be unwilling to back away from making other findings that are consistent with the reality that settlement of Australia is a fiction. Love and Thoms is very much in keeping with Mabo.

The government can hardly be surprised by the decision. It understands better than anyone the inconsistency in the Mabo decision. But like coloniser states around the world, to date it has been unwilling to rectify the record.

In the absence of a political reckoning, the prospect of more litigation is strong.

Tony McAvoy SC is a Wirdi man, barrister, native title and treaty law advocate

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