Recent Australian High Court rulings on issues of Aboriginality have taken a strange turn, and not for the better.

It is one reason why I am concerned with a constitutionally entrenched Voice to Parliament with unknown and unknowable scope to make recommendations about matters affecting Aboriginal and Torres Strait Islander peoples.

It will be justiciable and the interpretation of the amendment will be at the mercy of a court, the majority of which holds a mystical view of Aboriginality affirming the idea that Aborigines are in some way ‘owned’ by the land and therefore have a higher status than citizenship.

These are alarming concepts from a liberal democratic point of view. I am suggesting it injects elements into our legal system that are religious, anti-human rights, anti-democratic, and authoritarian. When taken to their logical conclusion, they demean Aboriginal people.

In an essay published by OpenDemocracy, Bernhard Forchtner defines ecofascism as ‘…a radical blend of ethnonationalism and authoritarianism, rooted in a belief that the land and the people are symbiotically interwoven, and form an organic whole.’

In light of that, let’s look at the case of Love and Thoms v Commonwealth [2020].

From an emotional point of view, this is a hard case. It involves two men of Aboriginal descent, one born in Papua New Guinea and the other in New Zealand, who were not Australian citizens despite living here for almost all of their lives, and who had permanent residency visas.

Love had been sentenced to 12 months in jail for assault occasioning actual bodily harm and Thoms sentenced to 18 months for domestic violence. As they were not Australian citizens, the Commonwealth government proposed to deport them in line with their policy.

These cases have always felt mean to me. Yes, in my view, not the court’s, Love and Thoms are technically in breach of the immigration law and the state has the right to deport them, but to what end?

It seems, for all intents and purposes, that they do not have family and support networks in these other countries. Why should we augment their punishment, which has already been decided by a court, as well as expecting another country to pay the cost of their incarceration?

I can understand judges trying to reason a way out of this, but that is not their job, and in this case they lead to more harm than the deportation would have.

Each judge gave their own separate judgments, so any interpretation of the result is in some way an oversimplification without a complex flowchart.

However, it would appear that if you are an Aboriginal you can never be an alien because of your unique relationship to the land and its unique relationship to you. It is a relationship that gazumps citizenship. While the government can make laws about who is or isn’t a citizen they can’t decide who is or is not an alien. As Aborigines can never be aliens they can never be deported, irrespective of whether they are citizens.

The problems with this are legion, and they bear on The Voice to Parliament in a number of ways.

The first problem is the subjectivity of the concept of Aboriginality.

Aboriginality is decided by the test of whether you are of Aboriginal descent, identify as an Aborigine, and are recognised by the elders of the relevant Aboriginal tribe as a member.

Two groups make a subjective decision – the person claiming to be an Aborigine, and the persons accepting the claim to be a member of the tribe. Absent an objective test, this gives rise to the possibility of corruption.

Aboriginal descent is hard to decide, outside a DNA test, and that is not enough, it requires a second party to grant you membership. In terms of The Voice, which grants rights to urban and non-urban Aborigines, this gives rise to the potential for significant vote-rigging and fraud, including people being granted Aboriginality even when they couldn’t objectively meet the test, or being denied it when they can.

Next problem is the religious nature of the claim. Land does not have property rights, and even if it did, it couldn’t own a person – that would be a form of slavery that has been illegal in Australia since the British colonists arrived (although it was practiced before according to explorers’ accounts).

This is a religious, or as the judges say ‘spiritual’, claim. But Section 116 of the Constitution says:

The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.

The purpose of this clause was to ensure no one could be persecuted or preferred because of their religion. In the 18th and 19th centuries, Catholics in England faced various privations. Until the end of the 18th Century they couldn’t own land or practice in the professions. In the 19th Century, it was still a condition of attending Oxford or Cambridge universities that you affirmed the Church of England 39 Articles.

Yet here the High Court appears to be embedding a kind of religious test.

Perhaps they might argue it is not a religious or legal claim of ownership, but something akin to biology. So they might claim they are Australian in the same way that kangaroos and gum trees are uniquely Australian flora and fauna, having been here forever, and being found only here and in Papua New Guinea at first instance. No matter where these plants and animals are found, they are always ‘native’ to Australia.

If this is where their logic is heading, then we are giving some reality to the claim that Aborigines were once governed by the mythical ‘Flora and Fauna Act’! It is a pathetically dehumanising view, othering Australian Aborigines, and corralling them from the mainstream of human rights and human dignity.

Or maybe it is a claim based on tenure? But what is their bar here? Not all Aborigines arrived at the same time, and some Europeans have ancestries going back over 250 years. Is it possible for the descendants of First Fleeters to ever be aliens?

Then there is the arbitrariness of this. Section 51 of the Constitution outlines the Commonwealth’s powers. It gives them powers over ‘naturalisation and aliens’ (Section 51 xix), which is the source of power being discussed in this case, as well as other things like ‘marriage’ (Section 51 xxi).

Yet while the majority gave a very concrete ruling in this case about who could or could not be an alien, delving into the historical circumstances and usage of the word, they have in other cases, as in that of marriage, defined it as generally as possible, ignoring the historical circumstances.

If they treated the marriage power as they treated the naturalisation power, then same-sex marriage would be outside the Commonwealth’s power because marriage has had the clear meaning of an exclusive union between a man and a woman up until the same-sex ‘referendum’.

But that doesn’t suit them, and neither does the idea that Aborigines could ever be aliens. So to reach their desired ends they argue in entirely opposite directions depending on the desired outcome.

Three of the justices examine the question of defining marriage, so this is a relevant issue, and they realised possibility of contradiction and tried to explain it away.

Rule of law means, among other things, that the law should be consistent and it is a primary role of judges, using precedents, statutes, and logic, to be as consistent as possible. When they fail, so does the rule of law and it becomes merely the rule of lawyers.

What will the court decide when faced with a new chapter in the Constitution giving new rights to Aborigines?

We can’t know, but what we do know is that in this case they have given Aborigines rights that no other person has, or can ever achieve and that this status goes beyond the rights of citizenship.

We also know that two of the three members of the sensible minority will retire shortly and their replacements will be chosen by Mark Dreyfus and so are most likely to come from the sentimentalist, romantic interventionist wing of the law.

Then again, they might not. Out of the dissenting judges, two were Labor appointees, and out of the four in the majority, three were appointed by the Coalition.

There is a lot of risk and uncertainty in guessing what this High Court will do, as well as any future one. Better to arrange your legislation so you don’t need to go there, and if you do, so you can correct the problems with simple legislation.

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