Society

Law and order

Legal fictions
How the High Court’s “alien” ruling inches us closer to addressing the facts that matter

Illustration by Jeff Fisher

If you do the crime, so the saying goes, then do the time. In Australia we like to add a third step: then go back to where you came from, or to where your parents came from, if we can possibly send you there. Perhaps because transportation of convicts is so etched into the collective psyche of the society that spread from the soles of Arthur Phillip’s boots when they trudged ashore at Botany Bay 232 years ago, we couldn’t quite let it go after Britain stopped sending its pickpockets and street urchins in 1868.

So we nationalised it. When a person who isn’t a citizen commits a crime and is sentenced to prison for at least a year, section 501 of the Migration Act requires the immigration minister to cancel their visa and deport them. This law applies even when the person was brought to Australia by their parents when they were a child, and who neither knows nor remembers any other home. It even applies when a person was born here to migrant parents who never got around to applying for their child’s citizenship. We will decide who stays in this country and the circumstances in which they’ll stay.

Like his father, Daniel Love had been born in Papua New Guinea – but their births happened either side of independence in 1975, so while his father was automatically an Australian citizen, Love was not. Through his father, Love is also descended from the Kamilaroi group, and he’s lived in Australia since he was six. He copped a 12-month prison sentence for assault occasioning bodily harm in May 2018.

Brendan Thoms was born in New Zealand, has also lived here since he was six, and is a recognised native title holder with the Gunggari people. He was sentenced to 18 months’ prison for a domestic violence assault in September 2018. Parliament’s power to make laws about deporting people comes from section 51(xix) of the Constitution, which authorises it to legislate about “naturalisation and aliens”. In High Court hearings last year, the government asserted that both Love and Thoms are “aliens” and, by virtue of section 501 of the Migration Act, must be deported.

It might be that the courts would see section 501 as an unacceptable form of double punishment if there were a federal bill of rights, but there isn’t. The courts can, however, knock out laws that are clearly nonsensical. Much time, ink and legal fees have been spent trying, over the years, to persuade the High Court that any law that results in the deportation of a person who is to all intents and purposes Australian – who has grown up here, who speaks with an Australian accent, who went to Australian schools and who has a footy team and eats Vegemite without butter – is surely nonsense.

Until last month, the furthest the courts were willing to concede the point was that parliament wouldn’t be allowed, as Chief Justice Harry Gibbs put it in 1982, to simply broaden its definition of “alien” to include people who couldn’t possibly be said to belong somewhere else. A kid who was born here, raised here, and indeed became a criminal here might not technically be a “citizen” (because they haven’t filled out the form). But surely they’re not an “alien” subject to deportation?

Yes they are, says the High Court, over and over again – and it typically uses all kinds of legal sophistry to get there. If “alien” means “belonging to another place”, courts have pretended that “belonging” has nothing to do with actual social and cultural connections. Even being born here, says current chief justice (chief sophist?) Susan Kiefel, “will not exclude a person from the reach of statutory-mandated alienage” – though it really is difficult to imagine where else a person who has been born and raised in one place might “belong”. Rather, “belonging” has to do with “loyalty” or “allegiance”. But not actual loyalty or allegiance. Rather, say the courts, legal belonging is the loyalty one’s identity documents purport one to have. If your papers say you’re a citizen of two places, well that’s smashing: you belong to two places (though you may never have actually been to either). But if your passport says you’re a citizen of New Zealand (because you were born there and it bailed on Federation) but not Australia, it doesn’t matter that you’ve lived here since you were six years old. You’re an alien and you can go “home”.


But as Aboriginal people, Love and Thoms protested, how could they be “aliens”? That question, as it turns out, exposes the one Australian legal fiction that is more fantastic than all the others. “Bullshit lie story” is a phrase in common usage by many Aboriginal people, especially in northern Australia. Lawyers encounter it when taking their clients’ instructions regarding witness statements that make allegations against them, for example. But nowhere is the phrase more apt than as an assessment of the story Australian courts have perpetuated about how the British Crown “acquired sovereignty” over the continent.

When Arthur Phillip set sail in HMS Sirius from the Isle of Wight on May 13, 1787, he believed his destination, a land enticingly called Botany Bay, was essentially unpeopled, yet blessed with plenty of vegetation, fish and fresh water. The basis for his belief was in large part due to the testimony of Joseph Banks, botanist, who had visited the place 17 years earlier with his captain, James Cook. They had camped on the rocky shore for a week and barely ventured inland before pushing off and sailing up the eastern coast.

Banks knew not one scintilla about the local Dharawal culture. When he and Cook and 40 others approached a group of Gweagal people in April 1770, two of the Gweagal men shouted at them and brandished their spears in an effort to have the visitors go away. Cook shot one of the men, Cooman, in the leg. The Gweagal left their camp and disappeared into the surrounding bushland. Banks thought this meant they were “extremely cowardly”. The newcomers raided the camp and stole dozens of spears and shields. Banks, who was famous in England, later told everyone that the natives of Botany Bay were at such an early stage of human development they were incapable of occupying land. “Their reason”, he wrote in his journal, “must be suppos’d to hold a rank little superior to that of monkeys.”

European international law in the latter 18th century, like its Roman progenitor, had long recognised that hunter-gatherers and nomads had a form of property in the lands they lived on. But the British colonisation of the Australian continent proceeded on the faulty empirical basis that Aboriginal people were barely human and had no claim in the territory. The error was obvious to Europeans within a year of them arriving. Aboriginal people were sophisticated land-users with strong cultures and laws. They fiercely resisted the European invasion and occupation. What should have happened then was that the British, in accordance with their own laws, either offered to make treaties or declared wars of conquest.

Instead the wars – often genocidal in scale – remained undeclared and largely unrecorded. And the empirical falsehood – that Aboriginal people had no sovereignty in the land – has been allowed to echo through the courts of the colonisers for decades and centuries. “Territory practically unoccupied” was how Lord Watson of the Privy Council described the continent in an 1889 case. The High Court rectified the “unoccupied” myth in Mabo (1992), but it left the sovereignty myth intact.

In the High Court’s decision last month on Love’s and Thoms’ applications, three of the justices – Kiefel, Stephen Gageler and Patrick Keane – delivered the kind of standard, sophist judgements courts normally deliver on these matters. It’s lamentable that the founding fathers paid no attention to Aboriginal people when framing the Constitution, Keane agreed, but to suggest Aboriginal people couldn’t be “aliens” was “distinctly unconvincing”. Gaegler found the argument “morally and emotionally engaging” but “not legally sustainable”. More convincing and legally sustainable, for them, was the absurd proposition that a person’s loyalty, commitment and allegiance to a country is something that is determined for them at birth, bureaucratically or legislatively, and only changes if one (or one’s parents) pays the application fee for citizenship status. In this respect Aboriginal people are no different to any other “ethnic group”.

The four other justices – Virginia Bell, Geoffrey Nettle, Michelle Gordon and James Edelman – saw the problem more clearly. If they were to accept that Aboriginal people do have an ongoing cultural or spiritual connection with land and waters, as the court did in Mabo, then to describe them as “aliens” who belong somewhere else would be to sever that connection. It would be bizarre.

The majority did not go so far as to say that to allow the government to define them as “aliens” would be to participate in the ongoing colonial project of undermining the basis for Aboriginal sovereignty. The mysterious causes of British sovereignty remain mysterious, but Love & Thoms v Australia edges one step closer to addressing that fundamental “bullshit lie story” – which, paradoxically, the High Court can’t actually address because it was established by the very Constitution whose authority would be under attack.

The right has worried itself into a lather about the implications of the majority judgement in Love & Thoms v Australia, and The Australian reported this week that 23 people in immigration detention centres are claiming Indigenous ancestry in the wake of the decision.

Over the years Australia has deported – transported? – about two thousand people convicted of crimes to New Zealand. Last week Jacinda Adern made the latest of her many suggestions that Australia stop deporting its people and its problems. Peter Dutton described her suggestion as “regrettable”, but there’s a neat logic to it that would avoid the need for courts to tie themselves in torturous logic, and would sever the unnecessary conflation of migration status and criminal outcomes: do the crime here, do the time here. The end.

Russell Marks

Russell Marks is a lawyer and an honorary research associate at La Trobe University. He is the author of Crime and Punishment: Offenders and Victims in a Broken Justice System (Black Inc., 2015). 

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