The High Court has recently delivered its decision in Love v Commonwealth of Australia and Thoms v Commonwealth of Australia. While the decision will only affect a small number of people its result is the recognition of the special status of Australia’s First Nations People. It now means that First Nations People who do not have citizenship cannot be deported under the Migration Act 1958.
Under the Migration Act 1958 the Minister has discretionary power to cancel a visa if they reasonably suspect a person does not pass the “character test”, and is satisfied that it is in the national interest. The Act relies on the aliens power found in the Constitution.
The Court was asked to consider whether the plaintiffs, Thom and Love, could be ‘aliens’ within the meaning of section 51(xix) of the Constitution. The Court found that ‘Aboriginal Australians (understood according to the tripartite test in Mabo v Queensland [No 2] (1992) 175 CLR 1 at 70) are not within the reach of the “aliens” power conferred by s 51(xix) of the Constitution.’ By a majority of 4:3, the court found that First Nations People, having a sufficient connection to traditional communities, are not within the reach of the aliens power conferred by s 51(xix).
The cases involved non-citizen First Nations people facing deportation. The basis of the plaintiff’s argument was the connection of Aboriginal and Torres Strait Islander (ATSI) people to their land and the implication of belonging. They argued that according to Mabo ATSI people had prior rights. The Commonwealth argued that these men did not belong in Australia and were aliens.
The men were born in Papua New Guinea and New Zealand. Each has a parent who is a First Nations person and an Australian citizen. Both had served time in prison for criminal offences. At the conclusion of their prison sentences their permanent visas were revoked and they were informed they would be deported. When making the decision for deportation the Minister did not consider the fact that both men had a parent who was a First Nations person.
Thoms is a common law native title holder and Love is not. As a native title holder the law already acknowledged Thoms had a connection to the land. Thoms was found to be First Nations person and therefore not an alien. However, the Majority was unable to answer this question in regards to Love. Love’s matter will now be heard in a lower court using the tripartite test, where it will be determined if he is accepted as a member of the Kamilaroi Nation.
In separate judgments, the majority ruled that the tripartite test of biological descent, self-identification and recognition of indigeneity by a traditional group can put First Nations People beyond the reach of the aliens power in the constitution.
The majority recognised a new category of “belonger”. This is somebody who is neither an alien nor a citizen and is owed protection by the crown.
The majority found that First Nations People can never be aliens because they have a special place in our country. 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”
Gordon J stated native title was “one legal consequence flowing from common law recognition of the connection between Aboriginal Australians and the land and waters that now make up Australia.” The common law can and does recognise that Indigenous peoples can and do possess certain rights and duties that are not possessed by, and cannot be possessed by, the non-Indigenous peoples of Australia.” She found that common law recognition of the relationship of First Nations People with their traditional lands and waters affects the interpretation of the constitutional term ‘alien’.
Justice Gagelar (dissenting) also acknowledged the “deep” and “enduring” connection First Nations people had to the land. However, he also stated it was “not legally sustainable” and he could not agree with what he saw to be a “race based constitutional distinction.” Contrary to this Justice Edelman argued that embracing difference is critical to achieving justice: “To treat differences as though they were alike is not equality. It is a denial of community. Any tolerant view of community must recognise that community is based upon difference.”
The Court distinguished between the constitutional meaning of ‘alien’ and Parliament’s power to determine ‘citizenship’ by statute. The Court reinforced that Parliament 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.
