Non-citizen, non-alien: A third category of people in Australia?
/In a heavily publicised decision, the majority of the High Court ruled this week that Aboriginal Australians, even if they are not Australian citizens, are not subject to the “aliens” or “immigration” powers of the Constitution and therefore cannot be subject to the Migration Act 1958 (Cth). Does this decision create a third category of immigration status, reserved for Australia’s first people who do not hold Australian citizenship?
The case of Love v Commonwealth of Australia; Thoms v Commonwealth of Australia [2020] HCA 3 concerned itself with the attempted deportation of two non-citizens for failing the character test by way of having a substantial criminal record. The legal challenge seemed simple enough: the plaintiffs (the non-citizens) were Aboriginal Australians despite not holding Australian citizenship. Because of this, the naturalization and aliens power which is conferred by section 51(xix) of the Constitution and its expression in the Australian Citizenship Act 2007 (Cth) cannot apply and neither can the immigration and emigration power under section 51(xxvii) expressed in the Migration Act 1958 (Cth) to cancel a visa under section 501(3A), detain under section 189, and deport under section 200 is unlawful.
“Deportation” is a highly charged word that is often misused by the media to mean any sort of forcible removal from Australia. Migration law, however, has a specific definition of deportation which applies only to removals under a deportation order based on character and security grounds, usually for criminal convictions.
One of the most fundamental aspects of the Migration Act is the distinction between non-citizens and citizens as the Act applies only to regulate non-citizens. Obviously, those who are Australian citizens are not subject to the Migration Act or its visa regime. The little known Australian declaratory visa is an exception although this is not technically a visa but an entry authority for Australian dual nations who cannot enter Australia on their Australian passport.
The Australian Citizenship Act 2007 (Cth) would also not apply as while this Act and the Migration Act do not expressly define or refer to “aliens”, its abstract ideals and preamble assist in tying up the alien/non-alien dichotomy by the need for allegiance and loyalty for citizenship. The Government argued that these allegiances to other countries meant that as they were non-citizens they were aliens.
What the majority of the court determined was that Aboriginal Australians that meet the test in Mabo v Queensland [No 2] (1992), which is a landmark case and one of Australia’s most significant, will not come under the aliens power of the Constitution despite not being an Australian citizen. There is a three-part test to determine aboriginality that involves proving:
biological descent;
recognition of that person’s membership of the group they identify with; and
recognition by the group’s elders or other persons who have traditional authority amongst those people.
One plaintiff, Thoms, was deemed by the High Court to meet that definition but way of holding native title while the other, Love, was referred to the Federal Court to determine his status.
The acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs goes so far as to state the possibility of a third category of persons in Australia based on this decision.
While there is probably a small cohort of people that will be affected, there are lingering problems that might be hard to solve.
Firstly, if an Aboriginal Australian is a non-citizen and outside of Australia, as the machinations of the Migration Act cannot apply to them, how can they enter Australia? They cannot apply for a visa if they are not an alien, despite holding a foreign passport. Indeed, Mr Thoms was released from detention as section 189 was deemed unlawful. This is the flip side of the non-alien coin.
Thoms, being the first and only judicially determined non-citizen non-alien, may want to reconsider any overseas holiday plans for the near future.
Secondly, if there was an Act or “visa” to authorise the entry of non-citizen non-aliens, what would the regulations for grant of this authority look like? Meeting the definition as set out in Mabo may prove onerous for someone outside of Australia and perhaps not even the Minister would personally want to make such a determination.
The possible solution may lie in amending the Australian Passport Act 2005 (Cth) to cater for this class of person to be issued a government document that entitles the right to enter Australia and perhaps with or without the entitlements of citizenship. Alternatively, the use of other heads of power in the Constitution could be used, such as section 51(xxvi) which is the race head of power, as was suggested by Justice Gageler.
The struggle, however, remains as to how and who will determine such a status.
A thought-provoking case indeed…