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.
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 Galloway is a legal academic with an interest in social justice.
Main image: Australia High Court (Credit: Rex_Wholster / Getty Images)