The High Court’s decision on Tuesday to exempt an entire group of people based on their racial identity from the operation of national migration laws is the most radical instance of judicial activism in Australian judicial history.
The High Court’s decision concerned two individuals who were not born in Australia and were not Australian citizens but who claim biological descent from Aborigines and Torres Strait Islanders.
After the two non-citizen individuals were sentenced for separate and unrelated offences against the Queensland criminal code, the Home Affairs Minister cancelled their visas and they were detained under the provisions of the Migration Act 1958 on the suspicion of being unlawful non-citizens and were liable to deportation.
This law relies on the commonwealth’s power under section 51 (xix) of the Constitution to make laws with regards to “aliens” — a phrase that established High Court precedent understands as referring to non-citizens.
The High Court, by a narrow majority, has arbitrarily written into this aliens power a new exemption.
The majority decided that it was not open to the parliament to treat an individual who can prove sufficient descent from an Aboriginal Australian as an alien. The majority claims that because the common law recognises indigenous native title to the land as surviving the reception of the common law and the sovereignty of the Australian crown, it follows that indigenous Australians also have an inextinguishable right to enjoy their traditional lands and maintain their cultural and spiritual connection to them.
The result is the legal fairytale of a unique class of individuals who are non-citizens as well as non-aliens.
The decision to limit the commonwealth’s power to decide who is and is not an alien is a direct attack on the sovereignty of the crown.
Justice Michelle Gordon introduced her decision by stating that “the fundamental premise” of the High Court’s 1992 Mabo decision “is that the indigenous peoples of Australia are the first peoples of this country”, and the connection between the indigenous peoples of Australia and the land and water that now make up the territory of Australia was not severed or extinguished by European “settlement”.
This is a misrepresentation of the Mabo case. The basis of the court’s decision to recognise native title in Mabo was that it existed within the common law system and that this was an institution derived from the sovereignty of the crown.
Yet the decision this week is founded on the opposite premise that, in at least respect of alienage, the racial identity of a person supersedes the sovereignty of the crown.
The majority decision is a total repudiation of racial equality.
By carving out an exception in the Australian Constitution for people on the basis of their immutable biological characteristics, the High Court has created a new class of person “consigned to inhabit a constitutional netherworld in which they are neither citizens … nor aliens”, as Justice Stephen Gageler noted in his dissenting judgment.
This fact alone should put to rest the idea that recognising historical facts in the Constitution would not lead to unintended consequences. The credibility of the minimalist case advanced by some “conservatives” for constitutional recognition of indigenous Australians has been swept away.
Any proposal that would insert a new provision into the Australian Constitution that would mark out some kind of recognition of indigenous Australians would inevitably come before the High Court.
The question now will be: if the High Court is willing to create a separate and privileged class of person that is beyond the scope of Australia’s migration laws, then what would it be prepared to do with a preamble or declaration written into the Constitution?
Each of the seven High Court judges offered their reasons for their decisions. This means that the judges responsible for this mess cannot hide behind the judgment written by another judge. It also means that a divided majority judgment will be easier to knock down by a future court.
But to do this would require judges who are more willing to hew to the basic legal principles that formed this commonwealth. In this respect this decision should be a wake-up call for Coalition governments.
Three of the four judges forming the radical majority were nominated by the Abbott and Turnbull Coalition governments. The supposedly conservative Coalition has failed in its basic task: preserving our country’s Constitution by appointing judges willing to play the proper role of saying what the Constitution means, rather than what judges would like it to mean.
During the next 13 months two of four judges in the majority — justices Geoffrey Nettle and Virginia Bell — will reach the mandatory retirement age. The two replacements must both be explicitly capital-C conservatives.
Anything else will be a further betrayal of the Constitution and of Australians.