The government of Australian Prime Minister Scott Morrison is looking to sidestep the High Court of Australia’s decision that Aboriginal non-citizens cannot be deported using the aliens power by using other powers instead, Australian Attorney General Christian Porter has said.
Responding to the court’s landmark decision on Tuesday, Porter said that he found “great strength of reasoning” in Chief Justice Susan Kiefel’s minority judgement and that the government might be able to legislate to deport the “not very large” group of Aboriginal non-citizens who have committed crimes in another way.
In a four-to-three decision, the court held that Aboriginal people with sufficient connection to traditional societies cannot be aliens and therefore are beyond the reach of existing deportation laws, which depend on the aliens power in Section 51 (xix) of the country’s constitution.
Porter yesterday told 6PR Radio that the decision has “very significant, immediate ramifications for what might not be a very large group of people.”
Porter said that this group — “people who are born overseas, who aren’t Australian citizens, but might be able to show indigeneity, and who are in Australia on a visa and commit an offense” would now “have to be treated differently from all other persons in the same circumstances,” because they cannot be deported under existing law.
“So, it has a clear impact for that group of people and that policy of deporting people who’ve committed serious offenses while on a visa and who are non-citizens,” he said.
“And we’ll be looking into ways in which we might be able to effect that policy, without reliance on the power that we previously were relying on, but we’ll look at that,” he added.
Porter tacitly endorsed Kiefel’s view, saying that her “minority reasoning was what I would have expected,” but conceded that the majority view would have implications for the federal government’s “program of pretty vigorous deportation of people that we consider represent a threat to the Australian community and Australian citizens.”
In his minority judgement, Justice Stephen Gageler laid out a blueprint for how parliament could address the “complications and uncertainties” created for the maintenance of an “orderly immigration program” by reinstating its powers to deport Aboriginal non-citizens.
He said these could be addressed “by the commonwealth parliament reverting to the approach of relying on the power conferred by [section] 51(xxvii) to make laws with respect to ‘immigration and emigration.’”
“Alternatively, the parliament might consider itself obliged to address them through racially targeted legislation enacted under s 51(xxvi) of the constitution [the race power],” he added.
Gageler said on the “correct understanding” of the aliens power “neither is a course which the commonwealth parliament ought to be driven to take.”
Porter said that the judgement “may have broader implications.”
“It creates an entirely new category of people in terms of what the government can and can’t do,” he said, in reference to the new category of “belonger” — a non-citizen non-alien, recognized by the majority.
“Whether or not the principle has application in areas where the commonwealth relies on other heads of power, I think, is far less clear,” he said.
Porter said that it was “not always an easy test” to determine if a person is indigenous, citing the fact that the court now requires a further hearing to determine if the second plaintiff, Daniel Love, is accepted as Aboriginal Australian by the Kamilaroi tribe.
Although the decision has already provoked a furious response from conservative commentators who argue that it introduces a new race-based distinction in the constitution, legal experts, including Sydney University constitutional law professor Anne Twomey, have said that it was too soon to know what the possible ramifications for the case might be beyond immigration law.
Wamba Wamba lawyer Eddie Synot, manager of the Indigenous Law Centre at the University of New South Wales, said the judgement concerned a “very narrow application of the aliens power” and explicitly stated it was not a recognition of Aboriginal sovereignty.
“More than anything for me, today just confirmed that the high court is never really going to be an environment where we’re ever going to be able to settle those original questions about sovereignty and the founding of the nations,” Synot said.
“It’s going to have to be a political decision outside of the court,” he added.
Synot said the decision had caused some angst among Aboriginal people concerned that a court was yet again appearing to decide on Aboriginal identity and belonging to country.
Those concerns have been heightened in the past few weeks by a request, swiftly denied, for police to investigate the Aboriginality of author Bruce Pascoe.
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