The High Court of Australia has today ruled that Aboriginal Australians, even if not Australian citizens, cannot be considered “aliens” and therefore are beyond the reach of Commonwealth laws made in reliance on the aliens power in the Constitution, including the Migration Act 1958.
A majority of the seven Justices of the Court held that:
“it is not open to the Parliament to treat an Aboriginal Australian as an “alien” because the constitutional term does not extend to a person who could not possibly answer the description of “alien” according to the ordinary understanding of the word. Aboriginal Australians have a special cultural, historical and spiritual connection with the territory ofAustralia, which is central to their traditional laws and customs and which is recognised by the common law. The existence of that connection is inconsistent with holding that an Aboriginal Australian is an alien within the meaning of s51(xix) of the Constitution.” (See the Summary published on the Court’s website.)
The Court applied the test of Aboriginality set out in Mabo v Queensland No 2 CLR 1, which requires that a person demonstrate biological descent from an indigenous people, and that the person’s membership of those people is recognised by both the person and the elders or other persons enjoying traditional authority among those people.
While it has previously been held that the term “alien” could be applied to any person who was not an Australian citizen, including British subjects and people born in Australia who did not qualify as citizens under the Australian Citizenship Act 2007, the special relationship between Australia’s indigenous people and this country has been recognised as pre-dating the legal system brought here in 1788.
This will undoubtedly rank as one of the most significant and important judicial interpretations of Australian identity since the debunking of the “terra nullius” idea that Australia belonged to nobody before European colonisation.