BY ELISA ARCIONI AND RAYNER THWAITES

This is the second of two posts AUSPUBLAW is featuring on the High Court’s Love and Thoms decision. Eddie Synot’s accompanying post is here.

Introduction

On Tuesday 11 February 2020, the High Court delivered its much-anticipated decision in Love v Commonwealth of Australia; Thoms v Commonwealth of Australia [2020] HCA 3. At issue was whether Aboriginal Australians, born overseas, without the statutory status of Australian citizenship and owing foreign allegiance (ie possessing a foreign citizenship), were ‘aliens’ within the meaning of s 51(xix) of the Australian Constitution. If they were, then they could be deported under the relevant provisions of the Migration Act 1958 (Cth). If they were not, then the constitutional head of legislative power relied on to support their deportation, and so the legislative provisions relied on, did not apply to them. This was the first time the relevance of Aboriginality for the aliens power had been litigated.

A majority of four of seven judges of the High Court held that ‘Aboriginal Australians are not within the reach of the ‘aliens’ power conferred by s 51(xix) of the Constitution’.  This was the central proposition agreed to by Bell, Nettle, Gordon and Edelman JJ, albeit writing individual judgments with significant differences between them. The government accepted that one of the plaintiffs, Mr Thoms, was Aboriginal and, within hours of the decision being handed down, he was released from immigration detention where he had been held pending removal. The position of the second litigant, Mr Love, has yet to be settled, with the factual question of his Aboriginality remitted to the Federal Court.

Three of the seven judges – Kiefel CJ, Gageler and Keane JJ – dissented on the central proposition, ruling that Australian Aboriginality was irrelevant to alienage, and that the plaintiffs, born overseas, without Australian citizenship and with foreign citizenship, were aliens and so vulnerable to deportation.

The two plaintiffs were born outside of Australia – Daniel Love in the Independent State of Papua New Guinea, Brendan Thoms in New Zealand. While each had an Australian citizen parent of Aboriginal descent, each was born with the citizenship of the country of their birth and not Australian citizenship. Love identifies as Kamilaroi and is recognised as such by an elder of that Aboriginal community. Thoms identifies as Gungarri and is accepted by members of the Gungarri people as such. He is also a native title holder. Both Love and Thoms moved to Australia as young children and became Australian residents. As adults they were each convicted of crimes to which were attached sentences of 12 and 18 months respectively. That led to an automatic cancellation of their visas, pursuant to a legislative provision that makes a sentence of imprisonment of 12 months or more a breach of the “character test”. They were placed in immigration detention pending deportation, in accordance with the Migration Act. Mr Love had had the decision to cancel his visa, which triggered action to deport him, revoked. He was before the Court in an action for false imprisonment.

The relationship between statutory and constitutional membership

Constitutional authority to enact the Migration Act has rested since 1984 on the ‘aliens’ head of legislative power in s 51(xix). If a person is a non-alien then the deportation provisions do not apply to them. At root, the split between the majority and minority in this case is a difference as to the determinants (and so the nature) of the relevant constitutional status: alien.

Is that constitutional status determined by citizenship, such that alien is the antonym of citizen?  Under Australian law citizenship is a statutory concept, its acquisition and loss presently governed by the Australian Citizenship Act 2007 (Cth). The Australian Constitution does not provide for a constitutional concept of Australian citizenship. At the time of its drafting, a decision was made not to include a distinct Australian ‘citizenship’, as Australia was part of the British Empire and the drafters decided not to alter or add to the existing membership status of subject of the Queen. The status of subject is referred to in the Constitution (ss 34 and 117), as is the general phrase ‘people of the Commonwealth’ (s 24). The Love and Thoms case rested, however, on the exclusionary category of ‘alien’. The challenge for the Court was to determine the relationship between the statutory basis of membership – citizen – and the constitutional basis for exclusion – alien.

The minority concluded that the constitutional status was determined by statutory citizenship, such that alien is the antonym of citizen. The majority position is that the relationship between statutory and constitutional membership is looser, such that one can be both a non-citizen and a non-alien, i.e. outside statutory membership but inside constitutional membership. The majority held that Aboriginal Australians belong to Australia in a way that demands and has constitutional recognition, that precludes their being aliens and therefore precludes deportation.

Each of the seven judges wrote their own judgment, leading to variations in the reasoning supporting or rejecting the central proposition. Putting the seven judgments together, the decision is 468 paragraphs long. There were commonalities between the judgments. The four majority judges reasoned from the common law’s recognition of rights and interests drawn from traditional Aboriginal law and custom, as established in the landmark Mabo (No 2) decision (1992). The majority held that recognition of these rights and interests was premised on the common law’s recognition of the Aboriginal societies that held and generated Aboriginal law and custom, including law and custom as to membership. Common law recognition of those societies had constitutional significance, informing the interpretation of the relevant constitutional term, alien.

Who is an Aboriginal Australian? The majority agreed that this was to be determined, in the context of the case, in accordance with the tripartite test from Mabo (No 2). The test’s three elements are: self-identification; recognition by the relevant Aboriginal community, and descent. This test has had a life outside the famous Mabo judgment. It was adopted by the Federal Cabinet in 1978, has been incorporated into some legislation (for example the NSW Aboriginal Land Rights Act 1983), is used in relation to some government programs and services at both national and state levels and has been referred to in other cases. It is obvious to state that, in the context of a long and difficult history of the law seeking to identify Aboriginal people – often for non-beneficial purposes – any attempt to crystallise one definition of Aboriginality is problematic. The tripartite test is itself not the only test adopted in law and is subject to criticism, including as to how its elements are weighted and understood.

In the Love and Thoms case, by reason of concessions made by the government (the defendant), to the effect that the plaintiffs were Aboriginal Australians, the nature and relative weighting of the three elements of the test for Aboriginality were not considered in depth in their application to the plaintiffs. What was clear was that the question of whether a person is an Aboriginal Australian is justiciable.

The question of whether Mr Love is an Aboriginal Australian has been remitted to the Federal Court for determination as a question of fact, due to a difference between the majority judgments as to the nature of the government’s concession in his case.

Clarifying non-alienage

Members of the majority made clear that they were not endorsing a general concept of ‘genuine link’. At an earlier period in Australian history, immigration legislation had relied on the immigration power in s 51(xxvii) (see for example Potter v Minahan (1908), R v MacFarlane (1923), Donohoe v Wong Sau (1925), Ex parte Walsh and Johnson; In re Yates (1925), and The Queen v Director-General Social Services (Vict); ex parte Henry (1975)). The immigration power was read as subject to an ‘absorption’ doctrine, whereby a person could become a non-immigrant through absorption into the Australian community. Members of the majority made clear they were not arguing that any equivalent of the absorption doctrine applied to the aliens power. The majority rested their reasoning on the connection of Aboriginal Australians with Australian land and waters. Aboriginal Australians were a unique, sui generis case, such that Aboriginality may generate a class of constitutional members (non-aliens) who are statutory non-citizens.

The majority also made clear that the ruling that Aboriginal Australians were non-aliens did not, in and of itself, confer statutory citizenship upon them. As non-aliens Aboriginal Australians were not vulnerable to removal and exclusion from Australia. But that was not to say that Aboriginal Australians in the position of the plaintiffs were citizens. Aboriginality did not equate with citizenship. Citizenship was a status determined by statute and, unless and until there was a change to the relevant statutory provisions, the plaintiffs remained non-citizens. No challenge was made to the validity of the governing statutes for immigration and citizenship – the Migration Act 1958 and the Australian Citizenship Act 2007 respectively. The question before the Court was whether the deportation provisions of the Migration Act applied to the plaintiffs. The majority held they did not.  The continuing non-citizenship of the plaintiffs opens up the possibility that, outside of their rights to enter and remain in Australia (rights integral to non-alienage) they might be subject to other disabilities of non-citizens, and conversely not be subject to certain obligations or duties of citizenship.

Members of the majority stated that Aboriginality was not an ineradicable status. It could be renounced, or potentially lost through prolonged residence outside of Australia.

Conclusion

An Aboriginal Australian is not ‘other’, vulnerable to deportation and exclusion from Australia, from their traditional lands and waters and the society centred on those lands and waters, on the basis of a happenstance of birth, parentage or, secondarily, foreign nationality law. These propositions lie at the centre of the decision and are intuitively compelling. The complexities of giving these propositions appropriate legal form, and the way they are dealt with in both the majority and minority judgments, provide reason for reflection and pause.

An initial issue of concern goes to what will be required by way of proof of Aboriginality. As noted above, the majority judges were in agreement as to the use of the tripartite test from Mabo. Differences emerged between members of the majority on the question of proof. One cause for unease is the requirement, clear in Nettle J’s judgment, that a plaintiff be able to show continuity in the observance of the laws and customs of the relevant Aboriginal society since the acquisition of British sovereignty. This requirement, familiar from native title law, has had devasting consequences in that context. Those Aboriginal communities that have suffered removal from their lands and waters suffer again through the resultant denial of native title. This raises, as acknowledged by Nettle J, the ‘invidious’ prospect that some Aboriginal Australians will be able to establish non-alienage, and some will not. Justice Nettle suggests this issue could be resolved by statute. Statute is also the answer for other problems according to Gageler J in dissent, who suggests alternative legislative powers to achieve the same exclusionary result sought – but denied – in this case. Those potential options have already been referenced by the Attorney-General  with a view to achieving the government’s policy objective of removing all non-citizens who have committed offences with sentences of 12 months or more attached.

The reasoning of both the majority and minority judgments leaves much to argue with. Major and minor issues require analysis and reflection, far beyond the comments we make here. Slippery notions of allegiance, sovereignty and political community feature throughout the judgments, with different meaning and effect, and with different impacts upon the ways in which the judges legitimate their reasoning and conclusions.

Doubts are expressed as to the relevance or utility of allegiance in one judgment (that of Gageler J), while used as a foundational element of reasoning in another (that of Nettle J). The dissentients refer to the reasoning of the majority as incorporating an element of Aboriginal sovereignty at odds with earlier case law, while members of the majority explicitly deny any ongoing Aboriginal sovereignty in order to recognise Aboriginal Australians as members of the Australian constitutional community. The Judges diverge in their emphasis on formal or substantive equality and in the way in which they respond to arguments about the relevance of race as distinct from Indigeneity. The relationship between the common law, statute, international law, and the Constitution is not clear or consistent across the variants in reasoning. It is not bold to predict it will take some time to work out the decision’s legal and practical implications.

This case was decided in the context of ongoing moves for constitutional recognition of Aboriginal and Torres Strait Islander peoples. It remains to be seen how the decision will feed into those broader constitutional debates, that go far beyond simply ensuring Aboriginal people are safe in their status as members of the constitutional community in Australia.

Elisa Arcioni is an Associate Professor in Public Law at the University of Sydney

Rayner Thwaites is a Senior Lecturer in Public and Administrative Law at the University of Sydney

This post is based on a blog post by the authors published on Globalcit on 17 February – see here.

Suggested Citation: Elisa Arcioni and Rayner Thwaites, ‘Aboriginal Australians not vulnerable to deportation’ on AUSPUBLAW (06 March 2020) <https://auspublaw.org/2020/03/aboriginal-australians-not-vulnerable-to-deportation>