High Court rules Aboriginal people cannot be deported for criminal convictions, cannot be 'alien' to Australia

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High Court rules Aboriginal people cannot be deported for criminal convictions, cannot be 'alien' to Australia

Post by loomer » 2020-02-10 09:34pm

High Court rules Aboriginal people cannot be deported for criminal convictions, cannot be 'alien' to Australia
By Elizabeth Byrne

he High Court has found Aboriginal people hold a special status and are exempt from immigration laws, after considering the cases of two men facing deportation for criminal convictions.
Key points:

The Commonwealth told the High Court anyone who was not a citizen was an "alien" under the law
The men's lawyers argued that Indigenous people could not be "alien" to Australia
The High Court stopped short of clearing one of the men entirely, saying it could not determine whether he was Aboriginal based on facts of the case

Two Indigenous men, Daniel Love and Brendan Thoms, have faced deportation since failing their migration character tests as a result of serving jail sentences.

In a 4-3 split, the High Court today found Aboriginal Australians were not subject to the alien powers in the constitution and could therefore not be deported under immigration law.

But the court did not clear Mr Love entirely, saying it could not reach agreement on whether he was an Aboriginal person on the facts stated in the case.
Aboriginal men spent lives in Australia, but faced deportation to a new home

Both men were born overseas but moved to Australia as children and held permanent residency visas.

Mr Love, a recognised member of the Kamilaroi people but born in Papua New Guinea, was placed in immigration detention after being sentenced to more than a year in jail for assault occasioning actual bodily harm.

A delegate for Home Affairs Minister Peter Dutton had cancelled the 40-year-old's visa, but that decision was later revoked and he was released from detention.

Mr Thoms was born in New Zealand and also does not have Australian citizenship, though he is a native title holder as a member of the Gunggari people.

After serving part of an 18-month sentence for a domestic violence assault he was taken into immigration detention, where he has remained while awaiting the outcome of the High Court case.

Outside the High Court, one of the men's lawyers Claire Gibbs, said Mr Thoms had been in detention for 501 days and was "incredibly relieved" by today's judgement.

"That's 500 sleepless nights and we hope that is the last," she said.

"He's missed two Christmases with his family [and] one of his son's birthdays. His son's birthday is coming up again so he's hopeful of returning to celebrate with his family."

Ms Gibbs said today's High Court ruling was not about citizenship, but was instead about "who is an Australian national and who is a part of the Australian community".

"It's about the use of alien powers, which we believe the government has been using inconsistently, unfairly and, now we've proven, unlawfully," she said.

"So, in a practical sense, Brendan is still a New Zealand citizen, but he's not an alien in this country and he's protected from being deported.

"Aboriginal Australians can no longer be removed from the country that they know and the country that they have a very close connection with."

Ms Gibbs said while the High Court today did not make a determination as to Mr Love's "Aboriginality", she was confident lawyers could prove that was the case.

Aboriginal people cannot be 'alien' to Australia, lawyers argued

In an unusual move the High Court held two separate hearings into the case.

It was originally heard in May last year, but came back in December after the court suggested the parties consider whether Aboriginal people occupy a special position, backed up by common law recognition of native title rights.

If that was the case, the court said it then followed that the crown had a unique obligation to protect Aboriginal society, and in return Aboriginal people owed a permanent allegiance to the crown.

Lawyers for the men submitted that Aboriginal people could not be "alien" to Australia.

"Aboriginal Australians are a permanent part of the Australian community," they wrote in a submission.

The submissions also stated that at Federation, Aboriginal people were not considered "aliens" under the constitution.

But the Commonwealth told the court any person who was not a citizen was an "alien" under the law, and that Mr Thorns and Mr Love owed their allegiance to the countries they were born in.
Source

A very fine outcome (and one that might actually be an important step towards an Australian federation that can embrace the presence of independent constituent Indigenous nations within it), though no doubt the people who oppose landbacks and decolonization on here will be racing in to deplore this clearly racist judgment.
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Re: High Court rules Aboriginal people cannot be deported for criminal convictions, cannot be 'alien' to Australia

Post by The Romulan Republic » 2020-02-10 09:38pm

NO SHIT indigenous people are not "aliens". Its fucking prepostrous that that even needed to be ruled on, especially in 20-fucking-20.

Then again, as an open borders advocate, I find the idea of classifying anyone as "aliens" and keeping them out of the country offensive, bigoted, and despotic.
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Re: High Court rules Aboriginal people cannot be deported for criminal convictions, cannot be 'alien' to Australia

Post by bilateralrope » 2020-02-10 10:07pm

I'll highlight what I think are the two most important bits of the article:
Both men were born overseas but moved to Australia as children and held permanent residency visas.
I don't think I've ever liked it when a government wanted to deport someone who has been living in the country since they were a child. It doesn't matter to me if they are members of the indigenous people or not.

Fortunately, it doesn't seem to have mattered to the court here either.
Ms Gibbs said while the High Court today did not make a determination as to Mr Love's "Aboriginality", she was confident lawyers could prove that was the case.

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Re: High Court rules Aboriginal people cannot be deported for criminal convictions, cannot be 'alien' to Australia

Post by loomer » 2020-02-10 10:11pm

Actually, it was central to the judgment. Mr. Love is going to be in court again to try and get to the bottom of that, and if it's determined that he is not a Gamilaroi man (and there's a whole other can of worms right there) he will not be eligible to stay under this precedent. So... No. It mattered rather centrally to the court here.
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Re: High Court rules Aboriginal people cannot be deported for criminal convictions, cannot be 'alien' to Australia

Post by loomer » 2020-02-11 04:04am

As expected, the asshole right-wing tears are now flowing. Chris Merrit went on Sky with Credlin to whine about how it should've been a plebiscite and will let FOREIGN CRIMINALS DESTROY AUSTRALIA. Bolt, no doubt, will find a way to mix the blood from his sudden burst aneurysm into his next column.
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Re: High Court rules Aboriginal people cannot be deported for criminal convictions, cannot be 'alien' to Australia

Post by mr friendly guy » 2020-02-11 07:05am

Letting foreigners who have lived in Australia a long time but never got around to citizenship stay after attempting to deport them isn't exactly new, although this is the first time its people of Indigenous ancestry that I am aware of.

https://en.wikipedia.org/wiki/Robert_Jovicic

Oh, and Robert Jovicic had 158 criminal convictions and we eventually repatriated him after dumping him on Serbia, his parent's country. According to the OP, the Indigenous man served a case for domestic violence, before being locked in immigration detention. Hmm? Compared to 158 convictions. Ok.
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Re: High Court rules Aboriginal people cannot be deported for criminal convictions, cannot be 'alien' to Australia

Post by loomer » 2020-02-11 07:15am

mr friendly guy wrote:
2020-02-11 07:05am
Letting foreigners who have lived in Australia a long time but never got around to citizenship stay after attempting to deport them isn't exactly new, although this is the first time its people of Indigenous ancestry that I am aware of.

https://en.wikipedia.org/wiki/Robert_Jovicic

Oh, and Robert Jovicic had 158 criminal convictions and we eventually repatriated him after dumping him on Serbia, his parent's country. According to the OP, the Indigenous man served a case for domestic violence, before being locked in immigration detention. Hmm? Compared to 158 convictions. Ok.
In this case it's not so much that they get to stay after being deported on humanitarian grounds but that they cannot be deported, period, on the basis of their Indigenous status. It's a very different scenario and one that establishes a third class of person for immigration law purposes, beyond citizen and alien. Jovicic, I will note, also predates the recent reforms to the Migration Act 1958 (Cth). The two aren't really comparable in terms of legal impact, especially as Jovicic didn't wind up at the high court and establish a precedent that no person of his class (Serbian non-citizen permanent resident) may ever be deported. Jovicic was also stateless, which was not going to be an issue with either Mr. Thoms or Mr. Love.
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Re: High Court rules Aboriginal people cannot be deported for criminal convictions, cannot be 'alien' to Australia

Post by Elheru Aran » 2020-02-11 06:04pm

Quick (academic and hopefully not too dumb) question: while obviously the indigenous peoples of Australia are organized into nations or a close semblance of such at the present time, is this something they chose for themselves or is it a state construct forced upon them by the occupiers?
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Re: High Court rules Aboriginal people cannot be deported for criminal convictions, cannot be 'alien' to Australia

Post by The_Saint » 2020-02-11 06:43pm

The catch (that of course types like Andrew Bolt and those who follow the likes of him) miss is that when the Australian commonwealth was created there was nothing written into the constitution regarding citizenship as this would contradict the British citizenship that (most/some/certain/non-Aboriginal) Australian residents received and the of-the-time state citizenship that existed.

As such the 'alien powers' existed to say who isn't a [defacto] citizen but there wasn't anything to say who was. "Australian citizenship" as it exists now isn't a constitutional power but simply a legal one.
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Re: High Court rules Aboriginal people cannot be deported for criminal convictions, cannot be 'alien' to Australia

Post by loomer » 2020-02-11 11:43pm

Elheru Aran wrote:
2020-02-11 06:04pm
Quick (academic and hopefully not too dumb) question: while obviously the indigenous peoples of Australia are organized into nations or a close semblance of such at the present time, is this something they chose for themselves or is it a state construct forced upon them by the occupiers?
So, this really depends on what you mean by nations. In Australia, the situation isn't like Canada and the US, where there are very distinct, legally incorporated nations that signed treaties with the colonial occupying forces. So if you mean 'is the <x> nation real' in the sense of 'is it the same nation it always was', then the answer is usually, sort of, yes - because there's no divide between the pre-colonial nations and communities that clustered geographically and around language barriers in extensive kinship-based clan and tribe arrangements and the modern expression of those same communities except for the damage done by colonialism shifting borders, killing some, and so on. If you mean 'is it real in the sense that whatever statutory body exists is an inheritor of the authority of pre-colonial nations', then the answer is no, but largely because there aren't formalized, legally recognized nations so much as a hodge podge of managing boards, associations, families, councils, communities, Aboriginal Land Councils, and so on, all with varying degrees of formal legal status, community status, and practical status. So unlike in America where you can speak of the Navajo Nation (for an example) as a cohesive body that combines both elements of pre-colonial authority and colonial interference, in Australia when we speak of, for instance, the Bundjalung nation, we aren't really pointing to a fixed entity in that sense.

So, yes, but no, but yes. They're nations without sovereignty (in practical terms; their actual sovereignty was never ceded and has been illegitimately stripped via force) within Australia, the formalized structures that interface with the Australian government are usually state constructs, and the social structures are a blur of tradition, practical requirements, and colonial influence. In this case, I suppose you're really asking 'so, who exactly is Aboriginal for these purposes, and how is it regulated'? If that's the case, I can explain the legal test used, which is very much an imposed construct of the state but one that mirrors the traditional approach in some respects.
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Re: High Court rules Aboriginal people cannot be deported for criminal convictions, cannot be 'alien' to Australia

Post by loomer » 2020-02-12 01:12am

The Coalition is, as expected, looking to find an alternative method of deporting non-citizen Indigenous persons. The idea of anyone being beyond his power must have Dutton threatening to eat anyone who fails to find him a way to bring them within it.
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Re: High Court rules Aboriginal people cannot be deported for criminal convictions, cannot be 'alien' to Australia

Post by Dominus Atheos » 2020-02-12 01:33am

Interesting legal conundrum: "Do all descendants of Aboriginal Australians have effectively an inherent (and presumably permanent) right of return?" Apparently the answer is "yes, yes they do".

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Re: High Court rules Aboriginal people cannot be deported for criminal convictions, cannot be 'alien' to Australia

Post by loomer » 2020-02-12 01:35am

Dominus Atheos wrote:
2020-02-12 01:33am
Interesting legal conundrum. Do all descendants of Aboriginal Australians have an inherent (and presumably permanent) "right of return"? Apparently the answer is "yes, yes they do".
I wouldn't phrase it that way, and mere descent is insufficient. To fall outside of the aliens power and thus be non-deportable under the current legislative arrangements, you have to identify as Indigenous, possess descent (which is where it gets a little hazy due to the, you know, ongoing and systemic genocide creating multiple generations of people whose records were falsified and ancestry hidden/erased), and be accepted by the community you claim membership of as an Indigenous person. Descent alone is insufficient.
Last edited by loomer on 2020-02-12 01:36am, edited 1 time in total.
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Re: High Court rules Aboriginal people cannot be deported for criminal convictions, cannot be 'alien' to Australia

Post by loomer » 2020-02-12 01:36am

quote is not edit
"Doctors keep their scalpels and other instruments handy, for emergencies. Keep your philosophy ready too—ready to understand heaven and earth. In everything you do, even the smallest thing, remember the chain that links them. Nothing earthly succeeds by ignoring heaven, nothing heavenly by ignoring the earth." M.A.A.A

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Re: High Court rules Aboriginal people cannot be deported for criminal convictions, cannot be 'alien' to Australia

Post by Nicholas » 2020-02-12 07:31pm

loomer wrote:
2020-02-12 01:35am
Dominus Atheos wrote:
2020-02-12 01:33am
Interesting legal conundrum. Do all descendants of Aboriginal Australians have an inherent (and presumably permanent) "right of return"? Apparently the answer is "yes, yes they do".
I wouldn't phrase it that way, and mere descent is insufficient. To fall outside of the aliens power and thus be non-deportable under the current legislative arrangements, you have to identify as Indigenous, possess descent (which is where it gets a little hazy due to the, you know, ongoing and systemic genocide creating multiple generations of people whose records were falsified and ancestry hidden/erased), and be accepted by the community you claim membership of as an Indigenous person. Descent alone is insufficient.
Given the complications you describe here and the fact that there are a fair number of people in the world with the will and resources to pay six figures for permanent residency in Australia I wonder how long it will be before someone is prosecuted for trying to buy or sell or pretending to sell Aboriginal status?

Nicholas

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Re: High Court rules Aboriginal people cannot be deported for criminal convictions, cannot be 'alien' to Australia

Post by loomer » 2020-02-12 09:11pm

Nicholas wrote:
2020-02-12 07:31pm
loomer wrote:
2020-02-12 01:35am
Dominus Atheos wrote:
2020-02-12 01:33am
Interesting legal conundrum. Do all descendants of Aboriginal Australians have an inherent (and presumably permanent) "right of return"? Apparently the answer is "yes, yes they do".
I wouldn't phrase it that way, and mere descent is insufficient. To fall outside of the aliens power and thus be non-deportable under the current legislative arrangements, you have to identify as Indigenous, possess descent (which is where it gets a little hazy due to the, you know, ongoing and systemic genocide creating multiple generations of people whose records were falsified and ancestry hidden/erased), and be accepted by the community you claim membership of as an Indigenous person. Descent alone is insufficient.
Given the complications you describe here and the fact that there are a fair number of people in the world with the will and resources to pay six figures for permanent residency in Australia I wonder how long it will be before someone is prosecuted for trying to buy or sell or pretending to sell Aboriginal status?

Nicholas
Given the difficulties involved, I can't see it being a significant problem.
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Re: High Court rules Aboriginal people cannot be deported for criminal convictions, cannot be 'alien' to Australia

Post by madd0ct0r » 2020-02-13 01:34pm

loomer wrote:
2020-02-12 09:11pm
Nicholas wrote:
2020-02-12 07:31pm
loomer wrote:
2020-02-12 01:35am


I wouldn't phrase it that way, and mere descent is insufficient. To fall outside of the aliens power and thus be non-deportable under the current legislative arrangements, you have to identify as Indigenous, possess descent (which is where it gets a little hazy due to the, you know, ongoing and systemic genocide creating multiple generations of people whose records were falsified and ancestry hidden/erased), and be accepted by the community you claim membership of as an Indigenous person. Descent alone is insufficient.
Given the complications you describe here and the fact that there are a fair number of people in the world with the will and resources to pay six figures for permanent residency in Australia I wonder how long it will be before someone is prosecuted for trying to buy or sell or pretending to sell Aboriginal status?

Nicholas
Given the difficulties involved, I can't see it being a significant problem.
It's a classic story is where the selfish rich man undergoes a year long process and is changed so much by it the selfish motivation is forgotten
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Re: High Court rules Aboriginal people cannot be deported for criminal convictions, cannot be 'alien' to Australia

Post by Nicholas » 2020-02-13 08:13pm

loomer wrote:
2020-02-12 09:11pm
Nicholas wrote:
2020-02-12 07:31pm

Given the complications you describe here and the fact that there are a fair number of people in the world with the will and resources to pay six figures for permanent residency in Australia I wonder how long it will be before someone is prosecuted for trying to buy or sell or pretending to sell Aboriginal status?

Nicholas
Given the difficulties involved, I can't see it being a significant problem.
No it won't be a significant problem for Australia, but I can see it destroying any Aboriginal groups that end up involved in such a case.

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Re: High Court rules Aboriginal people cannot be deported for criminal convictions, cannot be 'alien' to Australia

Post by The_Saint » 2020-02-18 09:06pm

Nicholas wrote:
2020-02-13 08:13pm
loomer wrote:
2020-02-12 09:11pm
Nicholas wrote:
2020-02-12 07:31pm

Given the complications you describe here and the fact that there are a fair number of people in the world with the will and resources to pay six figures for permanent residency in Australia I wonder how long it will be before someone is prosecuted for trying to buy or sell or pretending to sell Aboriginal status?

Nicholas
Given the difficulties involved, I can't see it being a significant problem.
No it won't be a significant problem for Australia, but I can see it destroying any Aboriginal groups that end up involved in such a case.
Given the way effectively all the Aboriginal groups operate ... there wouldn't be enough money on earth to "buy" Aboriginal heritage.
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