Court hears Aboriginal or Torres Strait Islanders cannot be deported as aliens even if they don’t hold citizenship

This article is more than 9 months old

This article is more than 9 months old

Indigenous Australians’ connection to the land is “important but not equivalent” to allegiance to Australia, the commonwealth has argued in a landmark case fighting for the right to deport two Aboriginal non-citizens.

Lawyers for the two Indigenous men, backed up by the state of Victoria, are arguing the Australian government cannot deport Aboriginal or Torres Strait Islanders even though they don’t hold Australian citizenship because the constitutional definition of “alien” can’t be set by the government of the day through citizenship law.

The plaintiffs, Daniel Love and Brendan Thoms, were born in Papua New Guinea and New Zealand, each with one Aboriginal parent, and face deportation due to laws which allow the cancellation of visas on character grounds. Their fight to stay now hinges on a special case arguing that although they are non-citizens, they are also not aliens.

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At a hearing on Thursday, counsel for the two men, Stephen Keim, argued that the high court’s second Mabo decision contained an “understanding of the history of European settlement and imposition of the sovereignty of the crown” which should guide the common law in the way it deals with “a multiplicity of legal issues” beyond native title, such as citizenship.

Chief justice Susan Kiefel suggested that Victoria’s submissions had taken the court into the territory of “Mabo No 3” – a “much wider proposition” that could have implications in many other areas of law.

Keim submitted on behalf of the plaintiffs that Aboriginal people are “permanent Australian nationals and not aliens in Australia” unless they abandon that status.

He asked the court to give “weight to Aboriginal Australians as the first people of what is now the Australian community”.

Keim submitted if the court accepted the “harshness” of the commonwealth’s submission that all non-citizens are aliens, people who became Australian citizens by naturalisation – rather than by birth – would be vulnerable to denaturalisation and deportation.

This could be up to one-third of Australians, including dual citizens and those born overseas, he said.

The state of Victoria, represented by Peter Willis, argued that Indigenous Australians have a special relationship with the land and waters of Australia analogous to the concept of allegiance which is the basis of recognising citizenship.

That connection was “sufficiently close and meaningful” that it answers the question of “who belongs here, who is a member of us”, Willis said, and was equivalent to the “airy” notion of allegiance, which most Australians are assumed to have from birth despite never giving it a moment’s thought or consciously affirming it.

Willis said this connection was “qualitatively different” to that of a non-Indigenous Australian such as “someone in [hit film] The Castle’s quarter-acre block”.

Kiefel queried how Indigenous Australians’ connection to particular land could be extrapolated to Australia as a whole then to the polity of the commonwealth, suggesting there “seems to be a few missing premises” in Victoria’s argument.

But Justice James Edelman gave the Victorian arguments more credence, suggesting that Indigenous Australians can have connection to particular land as well as a spiritual connection more generally, so while a native title claim to the former may be lost or extinguished “the latter always remains”.

The solicitor general, Stephen Donaghue, representing the commonwealth, submitted Victoria had invited the court to “jettison” the “core idea” of allegiance, which had always been allegiance to the sovereign or body politic not a place.

But justice Virginia Bell that the notion of the Australian polity may have expanded to recognise that Indigenous Australians’ connection with land “might be inconsistent with seeing an Aboriginal person as alien”.

Edelman suggested both allegiance and connection to land are “metaphysical” and it would be a strange result if a two-year-old born in Australia to two foreign parents was deemed to have allegiance but a two-year-old Aboriginal Australian born overseas did not despite 10,000s of years of Aboriginal people living in Australia.

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Several justices queried whether the connection gave rise to a permanent allegiance or could be renounced, and Willis replied that an Aboriginal Australian can disclaim their Indigeneity and become an alien by “personal choice” in the same way anyone could renounce a birthright to citizenship.

Justice Patrick Keane seized on this, asking if an Indigenous Australians could disclaim Australian citizenship but retain membership of an Aboriginal group, which Willis conceded was possible because they are “two different things”.

“Exactly right,” Keane replied. Donaghue later seized on this concession, suggesting Aboriginality was “not relevant at all” to Australian citizenship.

Donaghue argued that the common law draws no distinction between whether Australian citizens or subjects are Indigenous or non-Indigenous.

He argued that Indigenous Australians became British subjects because Britain exercised sovereignty over the entire territory of Australia, and later generations became subjects in the same way as non-Indigenous Australians.

Donaghue submitted that the fact both plaintiffs were born overseas and were citizens of foreign powers was sufficient to win the case, because the constitutional meaning of alien must at least include the common law meaning, which they both plainly fit.

Donaghue concluded by arguing the case had “no general implications for [all] Indigenous people” – only non-citizens – and noted non-Indigenous people would be deported in the same circumstances.

“It’s not Mabo number three – it’s whether two particular people can be treated as aliens.”

The court reserved its judgment.