Can an Indigenous person be considered an alien? – High Court decides
26 Feb 2020
On 11 February 2020, the High Court handed down its decision in the case of Love v Commonwealth of Australia  HCA 3. The case was a win for Indigenous recognition within the law. In this article Dominic Cookman and Alex James and Dominic Cookman explain the decision and outline its impact.
Brendan Thoms and Daniel Love both had their visas cancelled and were placed in immigration detention after being sentenced for assault. Neither man is an Australian citizen, having been born in New Zealand and Papua New Guinea, respectively. However, both men have one parent who is an Indigenous Australian. The question arose: Can a person of Indigenous descent be classified as an ‘alien’ under section 51(xix) of the constitution, the provision which gives the federal government power to deal with such matters?
The High Court came down in a split decision. The majority held that it is not open to the parliament to determine an Aboriginal person as being an ‘alien’. The judges noted that the common law recognises the connection Indigenous people have with the land and that it would be inconsistent and contrary to the existing recognition and customs to allow such a determination. In effect, the majority reaffirmed that Aboriginal people have a deep connection to the land and country in Australia, which is not displaced by legislation – even where an indigenous person holds another citizenship.
The dissenting judges argued that the constitutional power in question should not be limited by race. They also noted that as indigeneity is ascertained by biological descent, self-identification and recognition from an Indigenous community. The minority held that by allowing individuals to decide their own status or the status of others is a concession of sovereignty and a delegation of power away from the government.
What happens now?
The Attorney General, Christian Porter, has already stated the government’s intention to try and work around the High Court’s ruling. Whether or not they will be able to achieve this is still to be seen.
The case raises some interesting questions of constitutional law and the special place Indigenous Australians occupy in Australia’s history, but its practical ramifications may be limited. Note that both plaintiffs were born outside Australia and held citizenship of another country. At least one of the plaintiffs was entitled to apply for Australian citizenship by descent but did not do so. Just how many people fall into a similar category – of having Indigenous heritage but not holding Australian citizenship – remains to be seen.
Nevertheless, the case shows that even seemingly straightforward and accepted legal concepts, such as citizenship, are never fully settled.
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