High Court decision defines Aboriginal Australian identity

On Tuesday 11 February the High Court handed down its decision in Love v Commonwealth of Australia and Thoms v Commonwealth of Australia.

Both Daniel Love and Brendan Thoms had been subject to Federal Government legislation that permits the deportation of non-citizens from Australia if they have been found guilty of a crime and sentenced to 12 months or more in prison. The Migration Act 1958 gives the Minister discretionary power to cancel a visa if the Minister reasonably suspects that a person does not pass the “character test” and is satisfied that it is in the national interest.

For a number of years many people who have spent nearly their whole lives in Australia have been deported to the country of their birth (you can read about a previous case, Graham v Minister for Immigration (2017) from the Australian Constitution Centre here). The New Zealand Government has been urging our Government to reconsider the policy for many years. Hundreds of people with little connection, apart from their birth, have been deported to New Zealand. Many have lived in Australia for decades.

Although both Love and Thoms were born overseas, each of them has an Aboriginal parent and have lived in Australia since they were young children. They had never taken up Australian citizenship, although Thoms is a recognised native title holder in Queensland.

The Migration Act relies on the aliens power found in the Constitution. The Court was asked to consider whether Aboriginal non-citizens of Australia could be ‘aliens’ as found in section 51(xix) of the Constitution. The Court was split, with Bell, Nettle, Gordon and Edelman JJ finding that Aboriginal Australians cannot be aliens. Kiefel CJ, Gageler and Keane JJ dissented on a variety of grounds.

In the short term this decision means that Thoms cannot be deported and a lower court will examine whether Love is an Aboriginal Australian using the tripartite test before a decision is made as to the cancellation of his visa.

The tripartite test requires demonstration of biological descent from an indigenous people together with mutual recognition of the person's membership of the indigenous people by the person and by the elders or other persons enjoying traditional authority among those people.

However, because each Justice wrote their own judgment, and there was a 4:3 split, it may take some time, possibly many years, to work out all the ramifications of the decision. Some commentators consider the decision as significant for Aboriginal rights as Mabo (click here to read about the Mabo case in the Australian Constitution Centre).


Section 51 Legislative powers of the Parliament
The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:
(xix)  naturalization and aliens;

(Yep, we spelled naturalisation the American way back in 1900).

Throughout history, as far back as Ancient Athens and Rome, people have travelled and lived in other lands. These people, aliens, have had fewer rights and sometimes almost no rights compared to the members of the society they were living in.

At federation the term alien in our Constitution referred to a person who owed an allegiance to a foreign state, who was born out of the jurisdiction of the Queen, or was not a British subject. If your father or father’s father was a British subject, and you were born outside of the British Dominions, and your parents were married, you were not an alien. This definition also meant that at federation, Canadians, New Zealanders, the British and people from the other British Dominions were not aliens.

In 1948 our Parliament passed the Nationality and Citizenship Act 1948 under the Labor Prime Minister Ben Chiefly. When the legislation was introduced into the Parliament it was described as an evolution whereby Australian nationality had been acquired without the loss of status as British subjects. We remained British subjects until 1987 and British citizens who migrated to Australia after the enactment of the Australia Acts 1986 by all the Parliaments in Australia and the British Parliament were regarded as aliens. Britain is considered to have been a foreign power from at least this point. So over a long period of time, we have become citizens and who is or is not an alien has evolved.

Professors Galloway and Castan describe the definition of aliens today:

As a question of law, an alien is a person who owes allegiance to another country because they were born there.

Edelman J in his judgment in the Love case outlines the situation in Australia:

The "most important difference" between aliens and non-aliens is the liability of aliens to exclusion from the Australian community and deportation from Australia without the ability to return.

As Australians many of us identify our status with our citizenship.

Australian citizenship qualifies people to vote in elections and stand for Parliament (although disqualifications may still apply, including for dual citizens at the Commonwealth level). It allows us to travel on an Australian passport, which gives greater visa-free access to countries than most passports. It opens up a range of jobs in the public service and the armed forces. It qualifies people to serve on a jury, get Commonwealth financial assistance for university studies and receive help from the Australian Government in overseas emergencies (like the recent flights evacuating Australians from Wuhan).

Who is and who is not a citizen is found in federal legislation. There are many ways by which a person can become a citizen, including by birth, descent, or naturalisation.

But are there people who are not citizens that identify as Australians?

The Court has found that Indigenous people can never be aliens because they have a special place in our country. In her opening statement in her judgment Gordon J stated:

…the deeper truth – is that the Indigenous peoples of Australia are the first peoples of this country, and the connection between the Indigenous peoples of Australia and the land and waters that now make up the territory of Australia was not severed or extinguished by European "settlement"

In this decision the Court has distinguished between the constitutional meaning of ‘alien’ and Parliament’s power to determine ‘citizenship’ by enacting a statute. The Court recognised that parliaments do not have absolute power. They cannot change the meaning of the Constitution by legislating to define its terms, such as ‘alien’.  Only the courts can determine the meaning of a constitutional term.

But are these non-alien non-citizens regarded as Australian under the Australian Constitution or under the judge-made common law?  It seems that the common law recognition of the relationship of Indigenous peoples with their traditional lands and waters has affected the interpretation of the constitutional term ‘alien’.

Non-citizen and non-alien

Is this a new category of Australian? The non-citizen and non-alien cohort is likely a small group of people, but they may be overrepresented in the justice system for a myriad of reasons (including poverty). Hannah Ryan from Buzzfeed last year made an FOI request into:

The number of people who have claimed to be Indigenous who have been subject to visa refusal or visa cancellation processes.

The Department of Home Affairs had not kept any data on this, but did provide a statement that they are aware of media reports of 16 people who identify as Indigenous whose visas have been refused or cancelled. If any of these 16 people have been deported they potentially may be able to come back to Australia. Constitutional Law Professor Anne Twomey stated earlier this week:

Certainly from a narrow point of view it just means that Indigenous Australians who don’t have citizenship can’t be deported under the Migration Act. It might also give them a capacity to enter the country.

Does the High Court decision mean we should reconsider what it means to be Australian?

It is unlikely anyone ever thought of Love and Thoms as anything other than Australian. The Love Case decision suggests that citizenship is not the only way of being Australian. In all likelihood both were probably eligible to apply for citizenship. But for one reason or another they did not take it up.

Can you be born overseas, but have an ancestry of over 50,000 years in Australia, not go through the legal process of gaining citizenship, but have a deep connection to Australia, its land and its people? There could be many people living in Australia that feel this way.

On 7.30 last week Nova Peris stated:

when you acknowledge us as Aboriginal people, when you value us, you don't lose your 230 years of history, but you gain 50,000 years of history.

Is it possible that the decision in the Love Case and the potential upcoming referendum on Indigenous recognition could give us an opportunity to reflect upon the special relationship Aboriginal and Torres Strait Islander peoples have with Australia that other Australians might not have?

What is the constitutional significance of such considerations? And how does the decision in the Love Case effect future federal legislation?

Other possible ramifications

In their judgments some of the Justices found that a person may be a dual citizen but not an alien. Some experts have stated that this could lead to a challenge to the federal laws that allow Australian citizenship to be stripped in certain circumstances from dual nationals. This is from Bell J:

It may be, as the Commonwealth submits, that recognition of dual citizenship is largely reflective of the legislative choice to treat foreign citizens as capable of being Australian citizens. It does not follow that possession of foreign citizenship necessarily brings a person within the scope of the aliens power. Whether it is open to Parliament to treat as an alien a person born in Australia to Australian parents, by reason that the law of a foreign country confers citizenship on the person by descent, is a large question.

From Gordon J:

Observing that a "non-alien" can be a "dual citizen" who has dual rights, privileges and obligations is not inconsistent. A person can be a subject or citizen of a foreign power, or be entitled to the rights and privileges of a subject or citizen of a foreign power, and not be an alien.

And Edelman J:

Moreover, owing a foreign allegiance is not sufficient for alienage because an Australian citizen who becomes a dual citizen is not an alien, at least while the person remains an Australian citizen.

The future

The Love Case may well be studied for future decades as one of the most significant decisions affecting Australian nationhood and the identity and constitutional rights of each of us as individuals. CEFA looks forward to sharing with you the ongoing debates and the constitutional discussions that will most certainly occur over the coming months.




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