Why The Aboriginal Citizenship Ruling Is Alien To All Ideas Of Law

Written by:
21 February 2020
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The utter failure of the federal Coalition, after almost seven years in government, to do anything to arrest the left-wing political activism of Australia’s institutions of government and administration was on full display last week. It’s one thing (as bad as it might be) for the ABC, or the Canberra public service, or the country’s taxpayer-funded universities to indulge themselves in the progressive cause of identity politics. But it is altogether more serious when a majority of the High Court does it.

In last week’s decision of Love and Thoms v the Commonwealth, four of seven High Court judges ruled that whether Australia’s citizenship laws apply to a person depends on their racial background and identity. In the case of two individuals, Daniel Love and Brendan Thoms, the majority decided that although they were not born in Australia, and were not Australian citizens, they could not be deported following their criminal convictions because as people of Indigenous descent they were not “aliens” under the terms of the constitution.

Two of the majority, Justices Geoffrey Nettle and Michelle Gordon, were appointed by the Abbott government, and a third, Justice James Edelman, was appointed by the Turnbull government. The fourth member of the majority, Justice Virginia Bell, was appointed by the Rudd government.

If future High Court decisions endorse the majority view that the law should permanently divide Australians according to their race, Love and Thoms could prove to be the most significant and controversial case in the history of the court.

The majority decision in Love and Thoms is so deeply flawed at so many levels, and so at odds with the basic notions of the rule of law, it is difficult to know where to begin.

First, it overturns the notion of equality before the law.

Second, the majority decision means the Parliament no longer has the capacity to decide who can and can’t reside in the country, because there is now a class of people beyond the realm of Commonwealth law.

Third, the reasons the majority provides for their extraordinary decision are confused and incoherent, and are grounded in politics and philosophy, not in law. And the most confused and incoherent judgment is that of Justice James Edelman. At the age of 46, Justice Edelman could be on the High Court for another quarter of a century.

Dangerous territory

According to Edelman: “The identity of of Aboriginal people, whether citizens or non-citizens, is shaped by a fundamental spiritual and cultural sense of belonging to Australia’” and “[Aboriginal people] have been inseparably tied to the land of Australia generally, and thus to the political community of Australia, with metaphysical bonds”. Once a judge starts talking about “metaphysical bonds” they’ve transcended the realm of the law into something else entirely.

A more fundamental problem rests with Edelman’s argument that regards Love and Thoms, not as individuals, but as members of a group he describes as the “Aboriginal people”. Certainly, many individuals of Indigenous descent might regards themselves as “inseparably tied to the land of Australia” – but some might not.

To describe people as members of a group first, and as individuals second, is both dangerous and tragic. Whether Edelman is engaging in any sort of racial and ethnic stereotyping is for him to answer, but there is certainly the question of whether he would apply the sort of profile of belief he ascribes to Indigenous Australians to any other group of people who were not Indigenous.

Using “metaphysical bonds” to determine whether a person can be deported from Australia the country is highly problematic. There’s of course any other number of “metaphysical bonds” that could connect individuals to Australia. A great-grandfather in one of the 1200 Australian graves at the VC Corner Cemetery at Fromelles in France is just one such metaphysical bond.

The success of Australia as a multicultural society rests on a core, and up until now, widely accepted principle – namely that all Australians are equal under our political system and in the eyes of the law – regardless of whether their forebears arrived in Australia a generation past or 60,000 years ago. Last week, either deliberately or not, the majority of the High Court began to gnaw away at that principle.

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