Australia and pandemics v BLM: No,Love Lost (at the High Court) Part I

Making America Great (Again)

When the tragic event that occurred in the US, of the brutal murder of a Black man, ⁶ Mr George Floyd, by four officers of the Minneapolis police force, all eight minutes and 46 seconds of a man’s life slowly and violently being extinguished was broadcast live by a brave Black teenager, Darnella Frazier. ⁷ The world appeared to be able momentarily to deflect from their single-minded gaze on COVID-19. For many Black and Indigenous peoples however, BLM is no ‘mere story’ but a graphic depiction – an example of incontrovertible documentary evidence of executive excess resulting in a Black death in police custody.

Globally, many consciences were also stirred into action. They joined in the BLM chorus. Demonstrators took to the streets around the world including in Australia where they followed America, highlighting similar deep-rooted issues here of racism against Indigenous and other peoples. The show of support is wonderful, but why the trigger for their present action had to come from their cousins overseas is perhaps less palatable.

Therefore, hoping for some distance from the Americans, this article will examine the potential for prevention of the abuse of government power in Australia, through analysing Love, a recent special leave case ⁸ brought for judgment before the High Court of Australia. The next section sets the scene, outlining Australia’s constitutional power to make laws relating to race.

The Court: Defender of last resort against tyranny?

The Constitution, the founding document of non-Indigenous Australia, ⁹ includes race-based powers which are unnecessary for a modern industrial state with a (generally) good human rights record. The Constitution empowers the Parliament lawfully to enact detrimental, race-based laws ‘for’ ¹⁰ Indigenous peoples ¹¹ or to create neutrally framed laws that can be, and have been, applied differentially and adversely against Indigenous peoples. ¹² Such laws empower the Executive to take excessive, or subjectively speaking perhaps even draconian, action against Indigenous peoples.

At federation, paradoxically, s 51(xix) of the Constitution (‘aliens power’), the key section considered in Love, and the ‘races power’, ¹³ were intended for use against only the ‘inferior races’ ¹⁴ and people other than the ‘aboriginal [sic] natives/races’. ¹⁵ In a reversal of the founders’ intentions, race-based powers are now, instrumentally, applied detrimentally against Indigenous peoples alone. ¹⁶

Montesquieu thought that the separation of powers was a key mechanism that the English employed to prevent tyranny and despotism for those for whom the protection of the law was contemplated. The founders designed the Constitution specifically to prevent the abuse of power by one limb of government unchecked by any other, through the structurally embedded doctrine of the ‘separation of powers’. Clearly the federal protection was aimed only at White people, ¹⁷ as ‘Aboriginal natives’ were not a group that the founders, and hence the Constitution as enacted, sought to protect.

It is settled generally that Executive power is ‘bound’ or limited, ¹⁸ but this limitation applies largely for non-Indigenous peoples only. The founders discussed ‘race’ in the context of ‘alien races’, ¹⁹ making it difficult for the High Court to completely disentangle the terms ‘alien’ and ‘race’. Further, the founders explicitly excluded an equality clause from the Constitution. ²⁰ The absence of a positive constitutional race protection provision was perhaps an important factor in the Court’s ultimate difficulty in reaching a unified decision in Love. On the other hand, an equality clause in the US Constitution did not really protect Black people from the excesses of White Supremacy in that jurisdiction. Paradoxically, however, the specific existence and application of race provisions in the Constitution has allowed the Court to acknowledge an accurate picture of the mistreatment of Indigenous peoples – one that is truer to history. This history also allowed the majority of the High Court in Love to distinguish treatment meted out to Indigenous peoples from the treatment of immigrant or alien races.

Love is (not) all you need

The two cases in Love involved the (attempted) deportation of the Aboriginal plaintiffs by the Executive. The High Court heard the special leave cases together. The plaintiffs identified, and are accepted, as Aboriginal by their individual communities, ²¹ but not unanimously so by the Court. ²² The plaintiffs were born overseas but had lived lawfully in Australia for the majority of their lives. While this was not a relevant issue for the case, most Indigenous people in Australia would almost certainly consider the plaintiffs as Aboriginal.

The plaintiffs had not, however, been naturalised by their Aboriginal parents under the Australian Citizenship Act 1948 (Cth) (Australian Citizenship Act) ²³ and were therefore ‘holders of visas […] which were subject to revocation’. ²⁴ There was no evidence adduced by the defendant that the plaintiffs were not entitled to citizenship. ‘But for’ inadvertence, initially by their legal guardians, their status could have been regularised under statute. Having reached adulthood, they had still not done so, and Gordon J expressed the plaintiffs’ current migration status as, ‘the consequence [for the plaintiffs] of a parent failing to take a step to obtain a statutory status – or, for that matter, their failure to take that step themselves’. ²⁵

In Love, the Court held that the legislation in question, s 501(3A) of the Migration Act 1958 (Cth) ²⁶ was validly enacted under s 51(xix) of the Constitution. Section 501(3A) requires ²⁷ the responsible Minister to cancel a visa which has been granted to a person, if satisfied that the person does not pass the statutory character test. ²⁸ The plaintiffs had failed this statutory test. The Commonwealth sought to exercise its right to deport a person whose visa could be cancelled under s 501(3A).

If Australian citizenship had been created at federation, it is highly unlikely that ‘aboriginal natives’ would have been entitled to such citizenship. However, despite segregating Aboriginal peoples, ²⁹ who the founders clearly did not regard as an alien race, ³⁰ the founders did not on the other hand seek forcibly to exclude them from the continent. That is, in seeking to deport the plaintiffs, the Executive sought in practice to effect what not even the most racist of their forebears had contemplated against ‘aboriginal natives’.

Social hygiene: By deportation

The parties agreed that the law permits the Executive to deport aliens to a country which is willing to accept the deportee. ³¹ An issue for the Court in Love, therefore, was whether the Aboriginal plaintiffs were aliens and thus liable for visa cancellation and deportation under the Migration Act.

Prima facie, the legal issues in contention in Love are quite straightforward. A Westphalian nation state under international law is permitted to refuse entry to, or cancel the visa of, a non-citizen. ³² Australian domestic law reflects this position. However, the morality of a domestic court applying a Migration Act to Indigenous peoples of that state, should not be that straightforward. Justice Nettle noted in this context that ‘the plurality in Singh ³³ – acknowledged, however, the indicia and consequences of permanent protection are not confined to the realm of international law’ ³⁴ thus indicating that, for a possible deportation, a broader level of protection might be available to these plaintiffs even under domestic law.

This disjuncture between law and morality creates a challenge for a principled, rule-based interpretation of the Constitution in a time in which arguably, a majority of the community’s contemporary ‘Australian values’ do not generally fully align with those of the founders, especially on race. ³⁵ For Indigenous peoples, the question was whether current domestic law was sufficiently evolved to prevent the deportation of these Aboriginal plaintiffs. Leading up to Love, the answer clearly was ‘no’. The Court’s strict positivist approach to deportation cases thus far and, as applied to aliens, would not normally protect the Aboriginal plaintiffs.

However, in preventing immediate deportation, Love was true to the broader intention of the founders in checking excessive Executive action. The Court did this by curtailing the unjust use of neutrally framed laws. The result was positive for Aboriginal peoples generally. The decision in Love which in the end shifted the common law to a more humane place for Indigenous people, required seven separate judgments, and by community standards, by the seven most esteemed, moral, socially upright and able lawyers in the nation. The seven separate judgments demonstrate perhaps the Court’s discomfort in attempting to reconcile the irreconcilable, cognisant of their broader role in preventing or at least minimising the excesses of the other limbs of government.

However, the range of individual judgments in Love needed to achieve this protection clearly demonstrates the dangers and the severe limitations for Indigenous peoples of relying on British conventions alone for rights protections. BLM? Perhaps, but we have not really progressed very far.

Aliens in the midst

The Judge granting special leave phrased the question for the Court as: ‘Is the plaintiff an “alien” within the meaning of s 51(xix) of the Constitution?’ ³⁶ Section 51(xix) of the Constitution does not mention citizenship but refers by subject only to ‘naturalisation’ and ‘aliens’. The preamble of the Citizenship Act 2007 (Cth) provides that (Australian) citizenship ‘represents full and formal membership of the [Australian] community’. ³⁷ In the decisions leading up to Love with respect to non-Indigenous deportees, the Courts had taken a strongly positivist approach, of directly juxtaposing citizenship under the Act and alienage under the Constitution, ³⁸ and practically treating the terms as antonyms.

However, Love, did not go directly, immediately and solely ³⁹ to the question of citizenship as the court could have. Instead, the judges variously chose to examine the broader question of whether the plaintiffs owed allegiance to the nation and thus were part of its body/bodies politic. Indeed, in her judgment the Chief Justice noted at the outset that, ‘The question as framed [as the mere interpretation of the Constitution] is apt to mislead as to the role of this Court [… and] usurp the role of the Parliament.’ ⁴⁰ That is, as argued here, it is ‘the people’ and not the Courts who must restrain Parliament’s abusive hand in this context. Chief Justice Kiefel, linking statutory ‘citizenship’ and ‘membership of the body politic’ restated the question for the Court as, ‘It is by this means that Parliament determines who is to be part of the body politic and who is not to be.’ ⁴¹

To be or not to be

That is the question, for the High Court in Love. The Court did not accept Mr Love’s aboriginality. ⁴² The majority of the Court accepted that Mr Thoms, the other plaintiff, was Aboriginal. ⁴³ In doing this, however, the Court explicitly separated considerations of aboriginality, focusing more on the question of alienage as a constitutional principle. ⁴⁴

The judges in Love, however, did consider the place of First Peoples within the broader body politic or fabric of the nation. The majority held that Aboriginal peoples are beyond the scope of the aliens power. ⁴⁵ However, Kiefel CJ (and the minority in Love) concluded that, as non-citizens, the Parliament did not intend to consider the plaintiffs as formal members of the community, ⁴⁶ and thus they were constitutional aliens.

Further, in principle, the Court has held previously, ⁴⁷ and reiterated in Love, that race has no bearing on the capacity of a person to owe permanent allegiance to, or be owed protection by, the Sovereign ⁴⁸ – both issues key elements of citizenship and ‘belonging’ in a Westphalian state. As Gaudron J had observed earlier, with respect to race and citizenship, ‘race is simply irrelevant to the existence or exercise of rights associated with citizenship. So, too, it is irrelevant to the question of continued membership of the Australian body politic.’ ⁴⁹

Thus, if race is irrelevant to citizenship then ipso facto citizenship must be irrelevant to indigeneity and the majority in Love affirmed this position. ⁵⁰ As Gordon J expressed it, ‘neither plaintiff is within the reach of the legislative power in s 51(xix) of the Constitution.’ ⁵¹ Further, as the majority’s decision with respect to Mr Thoms showed under Australian common law, persons can be regarded and accepted as members of an Aboriginal nation (and thus part of the Indigenous body politic) irrespective of whether or not they hold Australian citizenship.

The majority in Love went further, to agree with the founders, and held that Indigenous peoples generally were outside the reach of s 51(xix) of the Constitution. ⁵² Such a finding is clearly within the meaning of the Constitution as enacted. Love confirmed that this was still the case in the law and under the Constitution as it has evolved. Justice Bell writing for the majority said:

I am authorised by the other members of the majority to say that although we express our reasoning differently, we agree that Aboriginal [and Torres Strait Islander] Australians (understood according to the tripartite test in Mabo [No 2]) are not within the reach of the ‘aliens’ power conferred by s 51(xix) of the Constitution. The difference with respect to Mr Love is a difference about proof, not principle. ⁵³

Her Honour’s statement for the majority also means that the current tripartite test for aboriginality, ⁵⁴ however imperfect, remains good law. In linking the races power and the aliens power Edelman J noted that:

Sir Samuel Griffith said of the race power that ‘[t]he intention of the clause is that if any state by any means gets a number of an alien race ⁵⁵ into its population, the matter shall not be dealt with by the state, but the commonwealth will take the matter into its own hands’. ⁵⁶

Unlike at federation however, Indigenous peoples are now clearly subject to the race power.

The next section examines the government’s evolving position on the definition of Indigenous peoples (or previously the ‘aboriginal native’) by contrasting the constitutional content of the races and aliens powers by using the founders’ intentions as an aid to interpretation.

Social distancing: Constitutional style

In the early days of federation, the Court was reluctant to use extrinsic material in interpretation, giving preference to the text of a constitutional provision. Sir Owen Dixon in his swearing-in speech as Chief Justice of Australia said that, ‘[t]here is no safer guide to judicial decisions in significant conflicts than a strict and complete legalism’. ⁵⁷ This arguably accorded with and reflected the majority of the founders’ approach to constitutional interpretation. Over time, this approach to interpretation has evolved to some extent.

In Cole v Whitfield ⁵⁸ the majority suggested that the Constitutional Debates in Adelaide, Melbourne and Sydney in the late 1800s may be consulted

for the purpose of identifying the contemporary meaning of language used, the subject to which that language was directed and the nature and objectives of the movement towards federation from which the compact of the Constitution finally emerged. ⁵⁹

Consequently, ‘originalism’ takes a broader approach than does textual analysis alone and takes cognisance of reliable extrinsic evidence to give meaning as to how the Constitution was understood by the founders. ⁶⁰ Such an approach to interpretation has a direct bearing on this article.

On the other hand, treating the Constitution as a ‘living force’ accords with the view of other key founders such as Inglis Clark. ⁶¹ Further, jurists such as Sir William Deane were reluctant ‘to allow the dead hands of the founders […] to negate or constrict the natural implications of its express provision’. ⁶² This arguably reflects a tension between originalism and an important contemporary purposive approach to constitutional interpretation.

While Sir Owen Dixon’s approach to interpretation ⁶³ may not be as well received today, it arguably means minimising political and other influence on the outcome of a case such as Love involving ‘significant conflict [between the limbs of government]’. ⁶⁴ However, a Dixonian approach would leave the Court less room to accord with or give effect to the country’s contemporary and evolving values. This article argues that in Love, the Court successfully negotiated these potential tensions and did so with fidelity to their legal tradition.

While awaiting a vaccine

A presumption of interpretation is that each word – especially as used by the founders – carries a different, and separate, meaning and further, that interpretation should accord with a word’s ordinary and natural meaning. ⁶⁵ The fact that the founders separately and explicitly used the words ‘aboriginal native/race’ and ‘alien’ as subjects in the Constitution, must mean that they intended these words to have different, distinct subject matters and meanings. Prima facie there must, therefore, at least be a rebuttable presumption that these constitutional classes/subjects are unique and that an ‘aboriginal native’ and an ‘alien’ must be presumed to be different subjects, cognisant however that the founders empowered Parliament to deport ‘alien races’ (excluding ‘aboriginal races’) residing in the states. ⁶⁶

Neither the Constitution nor the founders provide a definition or a test for determining who is, and who is not, an ‘aboriginal native’ or for that matter an ‘alien’, other than perhaps, that a person of an ‘alien race’ ⁶⁷ was someone other than a person from the (racial) ‘mixture derived from the United Kingdom, which formed the main Australian stock’ ⁶⁸ or an ‘aboriginal native’. Edelman J notes that ‘[a] constitutional alien is a binary concept: a person is either an alien or not.’ ⁶⁹

On the other hand, the diachronic nature of language shows that the ordinary meaning of a word reasonably can evolve with time. As mentioned, it is inconceivable that the founders would have considered an English-born, White, British subject as an alien. ⁷⁰ However, it is now settled that any unregistered ⁷¹ or non-naturalised British subject is an alien. ⁷² Notwithstanding this, and citing Gibbs CJ, Edelman J further observed that

in a passage later described as plainly correct, Gibbs CJ, with whom Mason and Wilson JJ agreed, said in Pochi v Macphee that ‘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’. ⁷³

As a constitutional principle on the scope of a constitutional head of power, surely, this limitation must analogously apply to ‘aboriginal natives’, a group according to the founders, clearly outside the meaning of ‘alien’. Justice Nettle arguably concedes this possibility by noting that considering Indigenous people as aliens is a conclusion that intuitively ‘appears at odds with the growing recognition of Aboriginal peoples as “the original inhabitants of Australia”.‘ ⁷⁴ A constitutional ‘aboriginal native’ is either an ‘Indigenous person’ or not. Such a person is inextricably and existentially connected to a part of this continent, while by definition an alien clearly is not. According to Nettle J a consequence of such a recognition of the original normative systems of Aboriginal people is that ‘[a]xiomatically, a person cannot be a member of an Aboriginal society continuously united in the acknowledgment of its laws and customs unless he or she is [free to be a] resident in Australia.’ ⁷⁵

The provisions containing the terms ‘aboriginal native’ and ‘aboriginal race’ were rescinded from the Constitution in the 1967 Referendum but their subject matter was not. Since the 1967 Referendum, the Court has considered issues related to Indigenous peoples as a group and has done so recognising a people deeply connected to this continent and its waters. ⁷⁶ It has not always been this way under Australian law. It has been so from time immemorial under Indigenous laws.

In 1971, and for the first time under Australian common law, the Northern Territory Supreme Court rightly recognised as fact (but not law) this deep Aboriginal connection with the continent’s land and waters, acknowledging the special ties as one of a ‘religious relationship’. ⁷⁷ It is inconceivable that one automatically loses one’s parent’s ancestral religion when one crosses a political boundary or because a Westminster Parliament arbitrarily deems this to be necessary for its own political expediency. The Aboriginal connection with Australian land and waters is not denied even by those on the political extremes. It appears however, based on the Commonwealth’s argument in Love, that some on the not-so-extremes within the Executive are seeking once more to rebuild such a slippery slope.

However, thankfully, the Court in Love reiterated that there was such a connection between Indigenous peoples and the land and waters of the continent. As Edelman J said, ‘The very words “Aboriginal” and “indigenous”, ab origine or “from the beginning”, enunciate a historical, and original, connection with the land of Australia generally.’ ⁷⁸

On the other hand, referring to what he reasonably expressed to be a weak case submitted by the plaintiff’s counsel, Keane J said that:

[t]he argument based on permanent allegiance advanced by the plaintiffs lacks coherence. For the plaintiffs, it was argued that they might lawfully abandon their allegiance to the Crown in right of the Commonwealth of Australia, but the polity could not sever its relationship with them. ⁷⁹

While this statement appears fair on its face it is noted on the facts however, that it was the Commonwealth and not the plaintiffs who were seeking to ‘sever its relationship’. The common law tripartite test requires no such relationship. Further, as with one’s faith, if an ‘Aboriginal person’ wants to sever his or her connection, including with the land, spirituality or identity, the tripartite test (which is the current law) will ensure that such a person both subjectively and objectively, will cease to be recognised as an Aboriginal person. Consequently, the invidious position for the Commonwealth as described by Keane J will never arise under the law as it stands.

Conclusion of Part I

The Court in Love took great pains to explore the question of whether an Aboriginal non-citizen could also be presumed to be a non-alien, arguing that this reflected the intention of the founders. It did so carefully and in a principled manner, within the constitutional limits as should a municipal court. The seven judges did so, each in their own way. In the end however, the majority in Love was true to the founders’ intentions by putting the Indigenous plaintiffs out of reach of the Executive’s power to deport. It did so by restraining the Executive’s power but paradoxically did so for a people that the Constitution and the founders did not seek generally to protect. In doing this, the Court has honoured the founders’ broader intent, the evolution of constitutional interpretation, and the development of the common law, and it was also successful in reflecting contemporary international norms on race. However, for protection of Indigenous people from injustice under the law as it stands, and which is subject ultimately to the whims of the government, this is very thin ice indeed.