Government tries to turn 'Aboriginal' into 'alien'

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Amid the ongoing tragedy of the Australian government's policy of keeping asylum seekers in detention, there is a lesser-known injustice presently under challenge in the High Court of Australia. Two Aboriginal men are currently being held in immigration detention under threat of deportation because they are not Australian citizens. The case raises practical questions of justice for the incarcerated men, as well as more far-reaching implications concerning the status of the relationship between Aboriginal and Torres Strait Islander Australians and the state.

Australia High Court (Credit: Rex_Wholster / Getty Images)Mr Love, a member of the Kamileroi people, was born in PNG to an Aboriginal father and PNG mother. He moved to Australia in 1984 when he was five years old, and has not ever applied for citizenship. Mr Thoms, a member of the Gunggari people and declared native title holder, was born in New Zealand to an Aboriginal mother and NZ father. He has lived in Australia since 1994. Both men have been convicted of an offence under the Criminal Code (Qld), and the Minister for Home Affairs cancelled their visas. Both are in detention pending the court's decision.

The court is considering the two men's cases jointly, as they raise the same constitutional issue. The Constitution gives the Commonwealth power to make laws in relation to 'naturalisation and aliens'. If the men are not 'aliens', then the Commonwealth is not empowered to deport them. The Commonwealth maintains that because the men are not citizens — a status that is different from that of an 'alien' — it is therefore open to the Minister to cancel their visas and deport them.

The plaintiffs argue that the men's connection with Kamileroi and Gunggari country respectively, and as members of these communities, is an inherently Aboriginal identity regardless of their place of birth and the consequences that entails under Anglo-Australian law. Under this argument, the men's 'non-alien' status would have them remain in Australia.

Importantly, the twofold implication of the Commonwealth's argument is not only to exclude the two men from their homeland, but also to banish them to a place foreign to them — denying their ability to connect with their country and their community.

This is not the first time the Minister has sought to deport non-citizens who are long-term Australian residents. In a notorious case in 2005, and following a series of criminal convictions, then-Minister Philip Ruddock ordered that Robert Jovicic be deported to Serbia despite having lived in Australia since he was two years old. Jovicic slept on the steps of the Australian embassy in Belgrade in protest. The case attracted public attention given that Jovicic did not speak the language, had no ties to Serbia and ultimately remained stateless when Serbia also refused him citizenship.

In a different example testing the limits of the power of deportation, there has recently been a successful challenge to a decision to deport Justin Hands, a New Zealand citizen who lived in Australia since he was two years old.

 

"If the court accepts this argument, there will be a new category of person recognised by law and this case will represent a significant shift in the relationship between Aboriginal and Torres Strait Islander Australians and the state."

 

At an early age, he was adopted by the Aboriginal community at Wallaga Lake in New South Wales. He had been a member of that community for over 35 years. Following his conviction for various crimes, however, the Minister cancelled his visa. Ultimately, the Full Court of the Federal Court, in a humane judgment, found in favour of Hands. The Court's decision at least in part referred to the adverse effect of Hands' deportation on the Aboriginal community.

More recently, the Australian government has sought to tighten the character test for visa holders, leading to concerns that New Zealanders and humanitarian refugees would be disproportionately affected including through deportation to a place either unfamiliar or dangerous to them.

The case of Love and Thoms is somewhat different from these other cases. First, unlike Jovicic's case, it relates to Aboriginal people. Secondly, unlike both Jovicic and Hands, the legal point is constitutional and not simply a matter concerning the exercise of the Minister's discretion under the legislation.

There is no question that the men are not citizens: the question centres on whether they are aliens. The suggestion in the men's submission is that they are non-alien, non-citizens. If the court accepts this argument, there will be a new category of person recognised by law and this case will represent a significant shift in the relationship between Aboriginal and Torres Strait Islander Australians and the state.

There are many ways to read this matter — especially for lawyers who love to delve into the depths of legal doctrine. But there is a simple and incontrovertible truth that is difficult to avoid. So long as we recognise Aboriginal and Torres Strait Islander peoples as First Nations; so long as we understand that First Nations' claims to land subsist despite the advent of English sovereignty; so long as the basis for land claims rest upon connection — physical, spiritual, kin-based — the notion of an Aboriginal person as 'alien' is untenable. 

The very etymology of the two words speaks of our inherent comprehension of the Commonwealth's argument. A person whose very identity is described as inhabitants 'from the beginning' ('Aboriginal') can hardly, simultaneously, be regarded as 'belonging to another' ('alien').

 

 

Kate GallowayKate Galloway is a legal academic with an interest in social justice.

Main image: Australia High Court (Credit: Rex_Wholster / Getty Images)

Topic tags: Kate Galloway, Aboriginal, Torres Strait Islanders

 

 

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Existing comments

The difficult question is "What determines a person's ethnic status"? Is it country of birth or genetic make up? Which of these two is the primary determinant? Country of birth would seem to me to be the most accurate yardstick rather than the fact, as in my case, that genetically I have an overwhelmingly Irish genetic makeup through my grandparental and parental forebears yet have no lived experience nor sense of belonging to Ireland. The elephant in the room is lived experience. Does growing up in a particular culture other than that of country of birth carry greater ethnic identification validity than either birthplace or genetics?
john frawley | 02 December 2019


As the law stands now John, being born in this country does not confer citizenship. In fact we are making it harder and harder for people to obtain or retain citizenship. Once upon a time we made it easy, and we positively encouraged people to become citizens and welcomed them into the family. Your grandparents and parents experienced this, as did the mass of post WW2 immigrants who we were encouraged to call 'New Australians' even before they were granted it. Calwell, for all his faults and prejudices, at least recognised that the sooner immigrants were accepted as 'one of us' the sooner and better they would settle in. And it worked ! In contrast, Morrison and Dutton see citizenship as a prize that they personally can dangle in front of people or threaten to take away if they are naughty, while they (Morrison and Dutton) exercise increasingly restrictive control of what they can do, where they can live, what resources they can access, and so forth. And we wonder why some people fail to identify with the nation and its institutions?
Ginger Meggs | 02 December 2019


Great article, but I think the last paragraph didn't carry the overall integrity to a satisfactory conclusion. The case for aboriginal identity seems prima facie whereas the case for alien is documented and currently lawful. The notion that an Aboriginal person as "alien" is entirely tenable if they make no claim to the contrary and their place of birth is elsewhere. The land claim by a foreigner made me smile... it's like an adverse possession claim by a tourist.
Ray | 02 December 2019


I found your case, Kate, compelling and persuasive. And I am still appalled by the Ruddock-Jovicic case.
SMK | 02 December 2019


Kate Galloway's penultimate paragraph pursues a series of observations with the rhetorical repetition of "So long as we...." At no time does she offer any clarity on who "we" may be. This omission is neither incidental nor accidental. Undefined, the "we" is left to imply that a broad population sits happily endorsing the points advanced by the pronoun - but, this is far from being representative of the diversity of opinion the matters evoke.
carey burke | 02 December 2019


A very sad saga. I too am predominately Irish ancestry and proud of it, but Australia is my home. Regardless of the semantics, one can only hope that the High Court will rule in their favor against a very hostile, inhuman government policy.
Gavin | 03 December 2019


Ray writes "The land claim by a foreigner made me smile... it's like an adverse possession claim by a tourist." He apparently disregards the fact that in 1769, the entire land of Australia was claimed by an English navigator. Those of us with Anglo-Celtic origin have no right at all to criticise an Aboriginal person's claim to a portion of this country, no matter where he was born. Meanwhile, Carey Burke asks who is represented by the pronoun "we", arguing that "Undefined, the "we" is left to imply that a broad population sits happily endorsing the points advanced by the pronoun - but, this is far from being representative of the diversity of opinion the matters evoke." When the pronoun, we, is used to broadly represent the Australian population, there is neither implied, nor necessary, reason to represent "the diversity of opinion the matters evoke." We, who happily endorse Kate's argument, can only hope that other Australians eventually come to accept the validity of Indigenous Australians' land claims.
Ian Fraser | 03 December 2019


What is it about the types of people who are the front men of the two different (but both "Liberal") governments in these three main cases (and others like them)? For these are honourable men, who loudly champion their AUSTRALIAN CHRISTIAN VALUES. As witnessed by their fervent intention to pass the Aussie Christian Values Of Honourable Men Like Us Bill, restricting the rights of anyone wanting to somehow criticise or restrict these ideas. (That is, of course, if critics or reporters can get criticism past the ever-tightening secrecy laws. One day, the public will never hear of such deportation cases. (“BLISS THROUGH IGNORANCE!”) Now, apparently we’re under attack by Aliens. (No, I didn’t mean the “Liberals”, although I do see your argument!) But seeing the way our Good Honourable “Liberal” Christian Men defend us reassures. Who could resist the symbolic equivalent of knocking a homeless down-and-out to the ground, then taking great pleasure in kicking away their walking stick and throwing their lunchbox into the nearest garbage bin? May these Aliens sleep forever on the steps of Australian Embassies overseas everywhere! We are inspired by the honourable men’s insight for all of us as to Australia’s future. Advance Australia Fair!
PaulM | 03 December 2019


As the law stands, they are NOT Australians and criminal activity cannot be ignored.
Mr A Kenos | 03 December 2019


There is a person of Australian-Papuan birth in a Melbourne detention centre, who was returned to Papua by ABF, only to be rejected by the Papuan authorities. He was told by the official he didn't belong to their country and would be immediately returned to Australia. He was landed in Brisbane where his family lives. ABF twists the knife a little more brutal by removing him to Melbourne, where he knows no one and has no visitors. Meanwhile, he waits unwanted by two countries.
Peter Carrucan | 03 December 2019


Has the HONOURABLE Minister ever had a conversation with Munjed Al Muderis? I suspect not ~ too great a security risk!
AJM | 04 December 2019


Ian Fraser hopes "that other Australians eventually come to accept the validity of Indigenous Australians' land claims." Yet this is not the subject of Kate G's article nor do my comments query land rights issues. What is advanced in Kate G's article is the status of persons who are of Aboriginal descent but do not hold Australian citizenship and ways of dealing with these matters when they present themselves - it is these matters that deserve close and full scrutiny.
carey burke | 04 December 2019


Three cheers for Ian Fraser and PaulM, as indeed for Kate Galloway, whose brains and heart we owe much to in learning about this. As for the argument advanced by Dr Frawley in respect of whether genetics or culture determine citizenship, he may care to recall that in that first of nations to oppose the yoke of British colonialism - Ireland - race or ethnicity has never constituted a basis for citizenship. Indeed, over the years Ireland's political leadership has included an illustrious American of Hispanic ancestry as well as the current Taoiseach, whose father is Indian.
Michael Furtado | 04 December 2019


I find this a frightening discussion. How on earth can the Australian government - or any Australian citizen pretend that someone with an Aboriginal mother ( or father) is not Aboriginal and has far greater rights to reside in this country, no matter where born. Being of Aboriginal descent means a connection - a heritage that goes back thousands of years- no matter what semantics are employed by modern day comparative latecomers in a classical dog in the manger stance. As for the government- in other cases they are denying people born in Australia, citizenship and applying the cruelty of 18th century transportation in reverse. This week in accompanying a young woman who needs to register for sickness benefits I witnessed again the extraordinary paradox of the bureaucratic rules that end up excluding the very people whose land we live on. To obtain a proof of identity a 'primary' document of is needed. In her case - a passport - of course not relevant or a birth certificate- also impossible for the many poor people in the past who either did not know this procedure or who have the money to do so. So hard to get past the barriers.
Michele Madigan | 05 December 2019


What does citzenship mean? Regardless of family history and ancestry, surely it's the acceptance of rights and responsibilities, including free education and conseqences when the law is broken.
Jolyon Sykes | 07 December 2019


Is it really beyond our system of justice, to take into account a well-based sense of belonging to a place or a people? Rules can only ever provide an approximate ground for justice!
Johanna Blows | 07 December 2019


Jolyon asks 'What does citizenship mean?' Most of all it means a deep sense of belonging, a belonging to the land and its people. Whether that belonging is gained through long association, or by by being born in it, or born into its people, it is something that no person should be able to take away from us. Citizenship as belonging should not be treated as a commodity that can be given or taken away by executive fiat.
Ginger Meggs | 10 December 2019


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