In the case of Love v Commonwealth, the High Court of Australia is considering submissions by two Aboriginal men born overseas, as to whether the Commonwealth can deport them. Neither man has been naturalised and their overseas birth means that they are not citizens.

While both parties accept that the men are not citizens, the case turns on whether it is possible for an Aboriginal Australian to be an ‘alien’ and therefore liable for deportation from Australia. This is therefore a constitutional matter, rather than a matter falling under the relevant statute. The issues are legally complex, but the case raises important questions that speak to the law’s capacity to regularise the status of the relationship between Indigenous Australians and the State. Of particular interest to me is the possibility of a broader comprehension by the common law of the legal construct under Aboriginal Law, of ‘connection to country’.

Facts

Mr Love, a Kamileroi man, was born in PNG to an Aboriginal father and PNG mother. He moved to Australia in 1984 when he was five years old, and has not ever applied for citizenship. He was convicted of an offence under the Criminal Code (Qld), and the Minister for Home Affairs cancelled his visa. He was in detention, but was released in 2018 pending the Court’s decision.

Mr Thoms, a Gunggari man and declared native title holder, was born in New Zealand to an Aboriginal mother and NZ father. He has lived in Australia since 1994. He was found guilty of an offence under the Criminal Code (Qld) and the Minister’s delegate has cancelled his visa. Along with Mr Love, he is in immigration detention pending the Court’s decision.

The Court is considering the two men’s cases jointly, as they raise the same issue. The Commonwealth maintains that the men are not citizens, and that therefore it is open to the Minister to cancel their visas and deport them.

On the other hand, their counsel argues that although they are not citizens, they are not aliens (‘non-alien non-citizens’). This is a constitutional law question as the relevant legislative power rests on s51(xix) of the Constitution dealing with naturalisation and aliens. The Australian Citizenship Act depends upon the naturalisation and aliens power – so if these two men are not aliens, then presumably they are beyond the Commonwealth’s power to deport. The basis of this argument rests upon the connection of Aboriginal and Torres Strait Islander people to country.

What is an ‘alien’?

The question of ‘alienage’ as it is used within the Constitution falls within the bounds of common law, not of statute. The parties acknowledge that the concept is not fixed, but has adapted over time. There is a central theme, however, of ‘allegiance’ that permeates discussion. According to the Court’s own proposition made to the parties (as proposition 2):

According to the common law an alien is a person who does not have the permanent protection of and owe permanent allegiance to the Crown in right of Australia.

Protection and allegiance are obligations that work together to describe the relationship between a person and the State. Importantly, ‘allegiance’ is not something that needs to be subjectively held by a person. I would therefore describe it as ascribed. You are non-alien if the law considers you to hold allegiance; but if you are alien, you do not hold allegiance. On my reading of the arguments in this case, this seems to involve circular reasoning.

(Generally speaking) those who are born in Australia are citizens by birth. As citizens they are ascribed with allegiance and therefore they are not aliens. Others are naturalised as citizens. These people proclaim their allegiance: they utter words of allegiance and through this performance they become citizens and are ‘transformed’ from aliens to non-aliens.

Both of these methods of determining alienage (a common law concept) seem to depend upon the statutory concept of citizenship – which appears to be treated independently of alienage itself. Remember: this is a case about the constitutional meaning of ‘alien’ and not about the statutory concept of citizenship.

I think that this is why the Commonwealth argued that:

[15] Statutory status as a citizen can and should be kept in alignment with constitutional status as a ‘non-alien’…

Allegiance to whom or what?

The relevance of allegiance is to link a person to the State. Representing a legal duty, it invokes the inverse responsibility of State protection. Without allegiance, the person has no connection to the State and therefore is alien – meaning that they are from elsewhere. The State’s duty of protection is not enlivened. As such, the State can cast the alien out: deport them.

I see a collision of terms that bedevil analysis in this case. Australia is a place, both land and territory; a State: an abstract person before the common law and a polity or collection of people; and it is a country in the standard English sense. Even our legal notions of what exactly constitutes the object of allegiance becomes strained as we revert to ostensible synonyms in navigating meaning.

In determining alienage however, the State is an abstract ‘legal person’ and a political entity representing an organised society. For this reason, the High Court has asked about the way in which Indigenous Australians’ connection to country achieves the same outcome as allegiance in connecting with the ‘Australian polity’. This question has caused some consternation in the arguments.

In the first place, comments so far in argument seem to construe connection to country in a material sense; the physical relationship between a person and the land. In this way, it has been distinguished from the way in which allegiance connects a person to the polity, or to the State.

Secondly, and reflecting the materiality of connection to country, there has been discussion about the limits of this connection in territorial terms. That is, a person has connection only to their tribal lands and no others. This argument is used, therefore, to reinforce the limitations of connection to country to express the requisite common law connection with the Australian polity.

Even in adopting or acknowledging the less material comprehension of connection as spiritual, the Commonwealth’s argument rejects the capacity of ‘connection’ to encompass a political or legal dimension reflecting the State.

With the greatest respect, I think this approach is at best an impoverished understanding of the notion of connection to country. To adopt this narrower conception is to deny the full expression of Aboriginal and Torres Strait Islander peoples’ relationship with this land, and consequently their relationship with the State.

I agree that it is correct that connection is not the same as allegiance: for surely, connection to country does not imply fealty to a polity known as the State in its contemporary Westphalian form. Aboriginal nations are precluded from recognition within international law and do not fall within the Westphalian model. This is not to deny their sovereignty. Rather, it denies the paramountcy of the common law State within Aboriginal law itself. The work done by allegiance in articulating the legal relationship between a person and the State can, however, be achieved by other means.

Connection to country

Although connection to country might be described as comprising a feeling of close connection with particular, material, estates, the relationship between people and land is far more complex. Irene Watson writes:

Law began in Kaldowinyeri, coming out of the creation. The creation of the first sunrise and first songs. In the beginning law was naked or ‘raw’, naked like the land and its peoples. Law emanates from a place of rawness and truth. In nakedness it is without facade, the truth is laid bare. Our laws were born as were the ancestors – out of the land.

For Indigenous Australians, land is law. And this law governs all relationships. This concept is directly inverse to the Western relationship between land and law. At common law, the law justifies State sovereignty over territory (its relationship with land). By contrast, for Indigenous Australians, land begets law.

Irene Watson again:

Raw law is unlike the imposed colonial legal system. It is unclothed of rules and regulations. The law was created raw like the land and its people. Our laws were birthed by the creation. And like the birthing of people, the law was born naked.

This Law, directly derived from land, comprises a comprehensive legal system. Its status was recognised as such Blackburn J in the Milirrpum v Nabalco (1971) 17 FLR 141, 267, where he found that the Yolgnu had a:

subtle and elaborate system of social rules and customs which was highly adapted to the country in which the people led their lives, which provided a stable order of society and was remarkably free from the vagaries of person whim or influence. If ever a system could be called ‘a government of law, and not of men’, it is that shown in the evidence before me… [emphasis added]

The Law did not govern only the functioning of Aboriginal society within a single estate – the presumption that seems to have been made in argument in Love. Rather, it empowers authorised members within that group to speak for their country as well as governing interaction with other groups and navigating relations more broadly. As Aboriginal and Torres Strait Islander peoples have engaged in trans-national travel, evidenced by language, materials, and technologies, there is substantial evidence that laws – encapsulated in the term ‘connection to country’ – do indeed represent a nexus with a polity that is broader than articulated so far before the High Court, albeit not a ‘state’ per se.

Connection to country might be regarded as an expression of Law itself: Law grounded in and derived from the land and the continuity of its practice by Aboriginal and Torres Strait Islander peoples in what Kent McNeil describes as de facto sovereignty. This practice co-exists in the colonial reality of Australia alongside the common law. In the same way that the common law is able to accommodate rights to land derived from Law (‘traditional law and custom’) (known as native title), so too is there room to comprehend a relationship with the State that is derived from Law – a non-citizen, but non-alien who is, by Law, of this land.

Conclusion

Can the apparent nexus with a physical place – connection to country – satisfy the requirement for allegiance to a polity? I think it can. It requires us, however, to comprehend the meaning of connection within an Indigenous framework, and to imagine the possibilities of common law finally to move towards regularisation of the relationship between Aboriginal and Torres Strait Islander people, and the State.

As Brennan J was at pains to out in Mabo (No 2):

In discharging its duty to declare the common law of Australia, this Court is not free to adopt rules that accord with contemporary notions of justice and human rights if their adoption would fracture the skeleton of principle which gives the body of our law its shape and internal consistency. [29]

I think that this can be done with the arguments put by the applicants to the High Court in Love, as illustrated in the diagram below.

I have other thoughts about this case, including the common law’s capacity to link allegiance and land through the feudal incidents of tenure. The common law has infinite capacity to comprehend land as a medium for the expression of political and social rights. More on this in a later post.

I will be greatly interested to read the judgment.

Thanks to Dr Melissa Castan for her generous collaboration in this world of ideas.