News

Indigenous People can NEVER BE Constitutional Aliens

 

Love & Thoms v Commonwealth [2020] HCA 3

Mr Thoms was born in New Zealand and as such was a New Zealand citizen. But he had resided permanently in Australia since 1994 and is a descendant of the Gunggari People through his maternal grandmother. Mr Thomas identifies as a member of the Gunggari People and is accepted as such by members of the Gunggari People. He is also a common law holder of "native title".

Mr Love was born in Papua New Guinea and as such is a citizen of Papua New Guinea. But he has been a permanent resident of Australia since 1984. Mr Love is a descendant of Aboriginal persons from his paternal great-grandparents. Mr Love identifies as a descendant of the Kamilaroi tribe and is recognised as such by an elder of that tribe.

Both Mr Thoms and Mr Love were convicted and sentenced pursuant to the law of Queensland. After their convictions and sentences were served, their visas were cancelled by the Minister for Home Affairs on suspicion of being "unlawful non-citizen[s]" and liable to being deported.

The Australian Constitution gives power to the Minister to deport people from Australia who are non-citizens and considered by virtue of their non-citizenship ‘constitutional aliens’ under what is known as the Alien Power in our Constitution.

So, for Mr Thoms and Mr Love since they were NOT natural born Australians or Australian’s citizens their visas were subject to the Minister’s cancellation power, and deportation.

However, the question remained could the Government (Home Affairs Minister) deport two men that by linage and recognition were Indigenous (Aboriginal) Australians?

The answer required the seven (7) judicial members of the Highest Court in Australia to answer.

The question then for the High Court was ‘were Mr Thoms and Mr Love unlawful non-citizens, ie: ‘constitutional aliens’ and subject to the power of the Minister to deport them?

 

The answer in a 4 to 3 narrow majority decision was NO – Aboriginal people CANNOT BE ALIENS (ie: non-citizens of Australia no matter where they were born and irrespective of their non-citizenship status).

 

The High Court (Bell, Nettle, Gordon and Edelman JJ) outlined three (3) main reasons why Aboriginal people are not [constitutional] aliens.

 

1. Aboriginal people do not fit the definition of alien in the Australian Constitution

 

Justice Gordon

Citizenship does not determine who is an alien. Instead, a constitutional alien is an outsider – the fundamental basis for the decision in Mabo was the deeper truth that Indigenous peoples of Australia are the first peoples of this county therefore they cannot answer the description of an outsider i.e (constitutional alien).

As, Aboriginal Australians are sui generis (unique).

 

Justice Edelman

Owing a foreign alienage is not sufficient for the alienage definition in our Constitution if it were it would mean all dual citizens in Australia would be classified as (constitutional) aliens.   

Aliens instead are foreigners (outsiders).

 

2. They are connected to Australia  

 

Justice Bell

Aboriginal people are sui generis (unique; in a category of their own) as their unique connection to Australia and their traditional land puts them outside the category of ‘belonging to another place’.

 

Justice Edelman

Aboriginal people are inseparably tied to the land of Australia bonds that are stronger than those forged by the happenstance of birth on Australian land or the nationality of parentage.

 

Justice Gordon

They are not outsiders or foreigners – but descents of the 1^st people of this country neither Federation nor the advent of citizenship since Federation has displaced the unique position Aboriginal Australians hold to Australia.

One of the central points in Mabo was that the Common Law does recognize that Aboriginal people do have certain rights and duties that cannot be possessed by non-indigenous people. These certain rights and duties are part of the people of Australia and not aliens to Australia.

 

3. Obligation to the protect Aboriginal people

 

Justice Nettle 

The Crown (in other words the Government) has an obligation to protect the Aboriginal people, a protection that was established and recognised prior to Federation and remains till this day.

Central to this unique obligation is the recognition and protection of Aboriginal people spiritual connection with ‘country’ and their obligations to care for the land and waters.

A connection that runs deeper than the accident of birth in a territory or their immediate parentage.

 

Therefore, Aboriginal people irrespective of where they are born, irrespective of whether they are Australian citizens or not, are NOT [constitutional] Aliens as they are NOT outsiders but are ‘connected’ to the land we know as Australia and they are unique to Australia and not from another place.