Citizens, Aliens, Race and the High Court

The decision of the High Court of Australia in Love v The Commonwealth of Australia: Thoms v The Commonwealth of Australia on February 11 has gone straight to the pantheon of Australian folklore and journalistic obsession as if it were a High Court decision in some way establishing that Aborigines are entitled to immunity from ever being removed from Australia for whatever cause, an immunity which non-Aboriginal Australians do not share. This is not really what it establishes, and not really what it was about: but then Mabo v The State of Queensland  (No.2) (1992) was not about Aborigines either, related only to native title of the Meriam people, Torres Strait Islanders, in the Murray Islands, on facts special to them, and has a claim to be the longest ever obiter dictum in Australian legal history. (It is worth adding that native title now exists under an enactment of the Commonwealth Parliament, as it should, and is not or no longer is a creation of opinion in the High Court.)

Mr Love was born in June 1979 in Papua New Guinea after its independence, became a PNG citizen at birth and so remains. His father was then an Australian citizen by birth as he was born in Papua before independence. His mother was a citizen of PNG. Love was not entitled to Australian citizenship by descent because he was born out of wedlock and his mother was not an Australian citizen nor a British subject. He travelled back and forth to Australia in his childhood and he was given a permanent residency visa in December 1984. He came to Australia in October 1985 when he was six and held visas and resided in Australia from then on. He is now forty and has lived in Australia continuously since he was six. Love’s ancestors include Australian Aborigines. He identifies as an Aborigine and as a member of the Kamilaroi people and has been recognised as such by an elder of the Kamilaroi people. Love was convicted of assault occasioning bodily harm in May 2018 and was sentenced to twelve months imprisonment. His visa was subsequently cancelled on the ground that he did not pass the character test because he had a substantial criminal record. He was taken into immigration detention. However, later the cancellation of his visa was revoked and he was released.

Mr Thoms was born in New Zealand in October 1988, became a New Zealand citizen at birth and still is. His father was then a New Zealand citizen. His mother was then an Australian citizen by birth, so Thoms is entitled to acquire Australian citizenship: but he has never applied to do so. Thoms came to Australia in December 1988, and came to Australia to reside permanently in November 1994 when he was six. He was granted a special category visa. Later he travelled to New Zealand for short periods but he has not left Australia since January 2003. He is now thirty-one. His ancestors include Australian Aborigines. He identifies as an Aborigine of the Gunggari people and is accepted as such by other members of the Gunggari people. He is one of the holders of the native title of the Gunggari people established by decisions of the Federal Court. Thoms was convicted of assault occasioning bodily harm in September 2018 and sentenced to eighteen months imprisonment. He commenced parole on the following day but was immediately taken into immigration detention and his visa was cancelled.

In each case there was a substantial prospect that further administrative action might result in removal from Australia. The claim made in each man’s lawsuit was that the legislation authorising removal was invalid in its operation on the plaintiff.

It is worth noting early that Love lost his claim. Thoms obtained an answer to Question 1 in the Special Case, which asked whether he is an alien within the meaning of section 51(xix) of the Constitution, and the answer can be fairly abbreviated as “No”, meaning that he won in an unqualified way. The answer in Love’s case to the same question can be abbreviated to “The majority is unable … to answer this question” and this means that he did not obtain a decision to the effect that he is not an alien, which is what he claimed.

There was no majority of opinions of the Justices in favour of any particular order in Love’s case. Among the Justices referred to in the court’s order as the majority three favoured answering Love’s claim “No” and one, Justice Nettle was of the view (at paragraph [288]) that it would be necessary for the Federal Court of Australia to find the relevant facts and determine the matter according to law. No other Justice was of that view, and three supported the answer “Yes”. There was no majority in favour of any order. Section 23 of the Judiciary Act 1903 makes provisions which can break stalemates where opinion is equally divided, but in this case it was not. Love did not win so he should have failed and on the terms of the court’s order he did. Nothing in the orders of the High Court seems to stand between Love and his ticket back to Papua New Guinea. However, he has actually been released, and he may not have much to fear from the heavy hand or pussy foot of the executive government.

To make an unqualified assertion of why Love failed, in the presence of seven different judgments reviewing constitutional and other law widely and finding facts and stating conclusions, would require heroism which the writer does not have, but the most significant difference between the facts of Love’s case and the facts of Thoms’s case seems to be that Thoms had been accepted as one of those participating in entitlement to native title, whereas Love had not. The decision in Thoms’s case can be cited as a binding authority in some future case where a person resisting removal has circumstances closely analogous to those of Thoms, including entitlement to native title: but in contrast there is no binding authority to the effect that participation in native title is essential and that a claimant whose facts do not include such entitlement must fail: such a claim remains open to argument.

For all the amplitude of the reasons given by the Justices in 468 paragraphs and 748 footnotes, the effects of the decision in favour of Thoms do not seem to be very wide-reaching. The case has nothing to do with whether Thoms, who has never been an Australian citizen, is or should be an Australian citizen, let alone whether any citizenship should be taken from him; nothing to do, either, with whether he should have been allowed to enter Australia. Thoms’s case did not relate to control of borders, immigration or to the right to enter Australia. Thoms had lived in Australia for many years and established relationships including personal relationships with people whose Aboriginality and connection with Australia are beyond all debate and who accepted him as an Aborigine. There is no connection between the holdings with respect to Thoms and the situation of an imagined person of Aboriginal descent but no other participation in Australian or Aboriginal life presenting himself at the border and claiming that his right of entry is unregulated: such a strange case can be left to be addressed when and if it occurs, and the majority opinions in Thoms’s case will not have much to do with it. It would be surprising indeed to learn that there are many people outside Australia who could possibly be involved in such situations, as emigration of Aborigines has been unusual. It would be surprising to learn that there are as many as two or three hundred people outside Australia in any similar position: and it would also be surprising to learn that there is any way of establishing how many there are. There are no floodgates here, open or closed.

At the core of the case is whether the power of the Commonwealth Parliament to legislate with respect to aliens in the Constitution’s section 51 (xix) extends to a person in Thoms’s situation. In the view of the majority (and here I attempt compression and generalisation of views which are expressed at great length), Thoms, descended from Aboriginal ancestors, living in Australia for many years and accepted by at least one Aboriginal elder as being an Aborigine, and participating in entitlement to native title, was not an alien within the meaning of that word as used in 1900 in the Constitution. In paying regard to Thoms’s associations with Australia and in reaching this conclusion, the majority attributed intense importance to Thoms’s being associated with Australia in ways referred to in judgments in Mabo v Queensland (No.2) when considering entitlement to native title. The majority did not attribute importance let alone conclusivity to Thoms’s citizenship either at birth or at the present time. For most purposes citizenship and alien status are mutually exclusive alternatives but this everyday reality cannot establish conclusively what the word aliens means in the Constitution, which does not refer to citizenship and was enacted long before Australian citizenship existed and at a time when Australians were British subjects, a status alluded to here and there in the Constitution. Knowing whether a person is an Australian citizen, a status not found in the Constitution and not existing in 1900, cannot control reasoning about the meaning of the word aliens in the Constitution. The word citizen and the concept of an Australian citizen are just not there, and the meaning of aliens cannot be tested against them. (To confuse yourself inextricably, start looking for conclusions derived from the inhabitants of Australia, New Zealand and British New Guinea being British subjects in 1900.)

Underlying the different views in the judgments is consideration in earlier cases in the High Court of the extent to which it is within legislative power to define who is an alien and the rights and disadvantages attached to being an alien. A striking statement in this body of opinion was made by Gibbs CJ in Pochi v Macphee (1981): “the parliament cannot, simply by giving its own definition of ‘alien’, expand the power under s 51 (xix) to include persons who could not possibly answer the description of ‘aliens’ in the ordinary understanding of the word”. Plainly the majority were of the view that when this test is applied an Aborigine who meets the prescriptions in Mabo v Queensland (No.2) cannot possibly answer that description in the ordinary understanding.

The majority judgments contain every idea and enthusiasm for the firm grounding and splendour of native title, and for the uniqueness and completeness of the association of Aborigines with Australia, its land and its waters, that can ever have been brought to bear in any judicial decision: particularly that of Justice Gordon, a paean to native title free of flat notes and minor keys. In these judgments the link between an Aborigine and Australia is stronger than any language can convey, and cannot be broken by distance of time or place or by generations of absence. Such enthusiasms are unusual, even in High Court judgments. The judgments will be useful when the values of egalitarian democracy reassert themselves and future historians seek to understand the enthusiasms of the present time.

When the writer seeks to survey who are the persons who could not possibly answer the description of “aliens” in the ordinary understanding of the word, and who are the persons who could possibly answer that description, there seems to be nothing in the case of a person who was born in another country, and has always been a citizen of that other country, that could make the facts that some one or more or all of that person’s ancestors one, two or more generations removed, or for that matter his immediate parents were not aliens place him in the first category: he could possibly answer the description of an alien in the ordinary understanding of the word, and it would follow that the Commonwealth Parliament had power to state whether or not he was an alien. The fact that one, all or however many of those ancestors was an Aborigine does not seem to make any difference in the ordinary understanding of language to whether the person could possibly answer that description: no more than if that ancestor were a British subject, or an Englishman, or a Norman.

Rather than attempt exegesis of my own understanding I will leave the reader to study the judgments of the minority, who are better equipped to decide on the reach of section 51 (xix) and have the constitutional responsibility to do so. Whatever else might be said about Gibbs CJ’s question, it does seem clear that the characteristics of persons found in Mabo (No.2) to have entitlement to native title are altogether unconnected with answering it. But to the majority it seemed otherwise. More minds than one, and more minds than three, must be brought to bear in pursuit of an answer.

There is really no room for severity and there is plenty of room for restraint in appraisal and criticism of the opinions of the majority in Thoms’s case. It is in no way to the point to observe (as is the fact) that to my mind the opinion of the minority is right, and obviously so: leaving aside statelessness, which was probably not much heard of before the twentieth century, there never was a time when a person who was not a citizen or a subject or in allegiance with a state or its ruler was not an alien to that state or its ruler. Yet there are systems of law which have not worked that way, and have made descent, the bloodline, important or conclusive—jus sanguinis.

It is not wrong (and it is not obviously wrong) to decide that Thoms in his circumstances was outside the range of possible meanings of aliens in the ordinary usage of language: the nature of language is such that that decision is possible, even though it does not present itself to me. And it is wrong, so it seems to me, to assert that deciding in that way should be condemned, or that it reveals a wrong concept of the responsibility of the judge. The Constitution is made of words. We have to live in the essential imprecision of language and of its use, and we have to live in the consequences while we enjoy the advantages. The meaning of words is inherently imprecise: the process is different from syllogism and mathematics.

A Constitution made of words must include a mechanism for conclusive resolution of their meaning. In our Constitution the mechanism is decision by the judiciary, ultimately by the High Court and if need be by a majority in that court. In this way controversies are decided and quelled, and the parties and everyone else can go on to deal with something else, rather than have problems which have apparently been solved circle back and reappear, as they often do in politics. Criticism of the judiciary in a hostile tone for a decision which the critic does not agree with, or does not like, is just not fair. The Justices are concerned with what the words mean, not with whether the outcome is splendid, or will be widely approved, or widely disapproved.

With the benefit of more than eighty years’ experience in using the English language it does not seem to me that either conclusion is irrational, manifestly and exclusively right or manifestly wrong, or displays a disposition to be a philosopher king, or reveals the (splendidly vague) characteristic of judicial activism. That term can be ready to hand and applied to more or less anything in a judgment that one dislikes.

Haunting all address to questions like this is the deep imprecision of racial classifications, whether a person is to be spoken of as an Aborigine, or in any other terms defined by way of race. Clearly establishing what a race is, and clearly assigning a particular individual to a particular race, are exercises to which no real precision can be brought, however clear the answer may seem in some particular cases: clear about what?

The position of Torres Strait Islanders was not involved, and they are hardly mentioned in the judgments. There could well be people in Papua New Guinea with strong associations with Torres Strait Islanders, and in view of the proximity of the Australian islands to Papua it would not be surprising to learn that there are numbers of people who think they may have associations with Torres Strait Islanders analogous to Thoms’s associations with Aborigines. Perhaps the immigration ambulance-chasers are already scouring the muddy southern coasts of Papua. Whether anyone will emerge from this and attempt immigration to Australia, and whether legal ingenuity can find any advantage for them in Thoms’s case remain for the future. There may be trouble there, but there is something of a gap between immigration law and removal of criminals.

John P. Bryson QC spent over twenty years practising at the Bar in Sydney, followed by over twenty years as a Judge and Judge of Appeal of the New South Wales Supreme Court