First posed, the question sounds insane: can the Australian government deport an Aboriginal person? The High Court has answered it, in a decision as significant as Mabo.  

Key clarification: this is not about Aboriginal or Torres Strait Islander people who are Australian citizens. It is about those who are not.

Daniel Love and Brendan Thoms identify as Aboriginal Australians. Love was born in, and is a citizen of, Papua New Guinea — Thoms, likewise, in New Zealand. They have lived in Australia since childhood, but never obtained citizenship.

Both have criminal assault convictions, triggering the Migration Act power to deport them. They asked the High Court to declare that they cannot be deported. Deportation derives from the Commonwealth’s constitutional power to make laws with respect to “aliens”. The issue was whether an Aboriginal non-citizen can be an alien. If not, they are outside Border Force’s reach.

The High Court split 4:3. The majority (Justices Bell, Nettle, Gordon and Edelman) ruled that an Aboriginal Australian cannot be an alien to Australia.  

The seven judges’ opinions clearly (and eruditely) reflect the fault lines in contemporary Australian thought about the status of Aboriginal people in our social and political framework.

The presenting question itself will trigger two conflicting instincts: one says of course, it cannot be possible that an Aboriginal Australian could fall outside the protection of our nation state; that’s a bizarre suggestion.

The other replies no, it’s not weird. What’s weird is the idea that, by virtue of their race, one group of people can attain a legal status that nobody else gets, no matter the history that brought us here.

The judges agreed on a few things. The constitution does not define who is an “alien”; that is up to the parliament. However, it cannot expand the definition to include a person who could not possibly fit within it. For example, a person born in Australia to two Australian parents cannot be an alien. But can an Aboriginal person born overseas?

Central in the debate was Mabo, the 1992 High Court case that recognised native title and the Aboriginal sovereignty over Australia’s land and waters that pre-dated 1788.

Did it carry an even deeper meaning? Having recognised 40,000-plus years of legal ownership, did our law carry that idea further to entrench a permanent intergenerational status for Aboriginal people derived from their connection to country?

The minority judges (Chief Justice Kiefel, Justices Gageler and Keane) were, as Gageler said, “not unmoved by growing appreciation of the depth of cultural connection to country and of the extent of historical dispossession of Aboriginal and Torres Strait Islander peoples”. No comfort for the revisionists there.

But they were unmoved by the legal arguments, and troubled by the idea of bringing “race” into the conversation. Gageler’s objection was “one of principle to the judicial creation of any race-based constitutional distinction”.  

That might seem odd, since the same constitution still includes an explicit race power and, in its original form, treated Aboriginal people like a temporarily inconvenient historical residue whose dying-off should be left to the states to quietly manage.  

I can empathise with the minority opinion, because there is something disquieting about the idea of exceptional status conferred by virtue of race (especially since I think race is a rubbish concept).  

There’s no definitive way of reconciling the truth of Aboriginal connection to country and its historical dispossession, with the desirable principle of absolute equality before the law. The minority went with the latter, resting its logic on the absence of a constitutional warrant for giving Aboriginal people a special deal.

To which the majority replied, in summary: piffle. The legal arguments are long, but at the base is a question of human justice. Give it up to Justice Gordon:

The fundamental premise from which [Mabo] proceeds — the deeper truth — is that the Indigenous peoples of Australia are the first peoples of this country, and the connection between [them] and the land and waters that now make up the territory of Australia was not severed or extinguished by European ‘settlement’.

Critically, that connection to country “is not a species of what European law understands as ownership or possession. It is a connection with land where the land ‘owns’ the people and the people are responsible for the land”.

That reciprocal relationship of obligation is what we call allegiance. From 1788, all Aboriginal people became British subjects. On federation in 1901, they became part of the Australian people. Throughout, their original connection continued. It would be “astonishing”, Edelman said, to push any of them off the team now.

The end result is small, in that it only affects people who are not citizens but resident here, and who can establish that they are Aboriginal or Torres Strait Islander (which is another story).  

It is also large, because it takes Mabo’s rejection of terra nullius and recognition of prior ownership, and extends the idea of connection to country to a spiritual, cultural and legal level that now lives within the Australian constitution.

Whether or not we end up writing words of recognition into the constitution, the High Court has now confirmed that they’re already there, in between the lines. Like I said, huge.

Peter Fray

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