Both the Migration Act and the Australian Citizenship Act rely on power to make laws with respect to “naturalisation and aliens” (section  51(xix) of the Constitution).

The High Court today (11 February 2020) has handed down a very interesting decision in relation to the question of who is an alien. Both of the Plaintiffs (who were not related to each other) were:

  1. born outside of Australia, one in New Zealand and the other in PNG;
  2. citizens of their respective birth countries and both had lived in Australia for a long time;
  3. both had their visas cancelled because they fell foul of the character test as a result of crimes they committed; and
  4. were both in immigration detention.

At this stage you may be asking what’s the issue? There is nothing remarkable about those facts. However, what sets this case apart is that both men were of aboriginal descent, one being a member of the Gungarri People and the other a descendant of the Kamilaroi group. Both were accepted as such by elders of those tribes. The legal issue that the High Court had to grapple with is whether the plaintiffs were “aliens” (clearly not the type in the photograph). If not, then the power to cancel their visas did not apply to them.

The judgment is long and complicated and each of the seven judges gave their own reasons. The net result is that by majority (Justices Bell, Nettle, Gordon and Edelman) of 4:3  it was found that aboriginal Australians, even if foreign citizens, are not aliens. There may be exceptions to that if they had, for example, renounced their aboriginal identity.

Although the judgments are long (468 paragraphs) and complicated, it is interesting to see how the court considers issues such as: what is aboriginally as per the test set out in Mabo?; the effect of white settlement and federation (prior to which there were no aliens); and whether the argument was effectively for a race based limitation to constitutional power? There is a long discussion about the previous “alien cases” that have been before the Court.

The High Court has helpfully published a short summary of the case or if you’re up for a longer read: Love v Commonwealth of Australia; Thoms v Commonwealth of Australia [2020] HCA 3.

Creative commons acknowledgment for the photograph.

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