citizenship

As foreshadowed in my last post, I return with some reflections on Love v Commonwealth: a case currently before the High Court of Australia in which two Aboriginal men, both non-citizens, are arguing against their deportation from Australia. The argument involves interpretation of the ‘naturalisation and aliens’ power in s51(xix) of the Constitution. In a nutshell: if the men are aliens (due to their overseas birth) then the Commonwealth can deport them. If they are not (due to their Aboriginality) then it cannot.

The case inherently involves land: land as sovereign territory, birth in foreign lands, native title, and connection to country. In spelling out the bounds of who is ‘in’ and who is ‘out’ – known in the common law as alienage – the law is concerned very much with place. It is the applicants’ birth out of place that ostensibly empowers the State to exclude these men from its territory. But it is their connection to this place, a connection recognised at law, that warrants a rethinking of the foundations of the relationship between Indigenous Australians and the State.

In common law, land upholds and manifests State power, and one of its iterations is as the law of alienage. However, it is perhaps inevitable that as a property lawyer, when I read the Love case I see the long shadow of the feudal doctrine of tenure.

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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’.

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