The shenanigans of a colony gone feral.
From the article on 12 Feb 2020 by theguardian.com of the headline:
Attorney general Christian Porter says government may be able to legislate a new way to deport those who have committed crimes
Attorney general Christian Porter said the high court’s decision that
Aboriginal Australians are not ‘aliens’ has ‘very significant, immediate
ramifications for what might not be a very large group of people’.
Photograph: Mike Bowers/The Guardian
The Morrison government is looking to sidestep the high court’s
decision that Aboriginal non-citizens cannot be deported using the
aliens power by using other powers instead, the attorney general has
said.
Responding to
the high court’s landmark decision on Tuesday,
Christian Porter said he found “great strength of reasoning” in chief
justice Susan Kiefel’s minority judgment and the government may be able
to legislate to deport the “not very large” group of Aboriginal
non-citizens who have committed crimes in another way.
In a four-to-three decision, the high court held that Aboriginal
people with sufficient connection to traditional societies cannot be
aliens and therefore are beyond the reach of existing deportation laws
which depend on the aliens power in section 51 (xix) of the
constitution.
Porter told 6PR Radio on Wednesday the decision has “very
significant, immediate ramifications for what might not be a very large
group of people”.
Porter noted this group – “people who are born overseas, who aren’t
Australian citizens, but may be able to show indigeneity and who are in
Australia on a visa and commit an offence” would now “have to be treated
differently from all other persons in the same circumstances” because
they cannot be deported under existing law.
“So, it has a clear impact for that group of people and that policy
of deporting people who’ve committed serious offences while on a visa
and who are non-citizens,” he said.
“And
we’ll be looking into ways in which we might be able to effect that
policy, without reliance on the power that we previously were relying
on, but we’ll look at that.”
Porter tacitly endorsed Kiefel’s view, saying her “minority reasoning
was what I would have expected” but conceded the majority view would
have implications for the federal government’s “program of pretty
vigorous deportation of people that we consider represent a threat to
the Australian community and Australian citizens”.
In his minority judgment, justice Stephen Gageler laid out a
blueprint for how parliament could address the “complications and
uncertainties” created for the maintenance of an “orderly immigration
program” by reinstating its powers to deport Aboriginal non-citizens.
He said these could be addressed “by the commonwealth parliament
reverting to the approach of relying on the power conferred by [section]
51(xxvii) to make laws with respect to ‘immigration and emigration’”.
“Alternatively, the commonwealth parliament might consider itself
obliged to address them through racially targeted legislation enacted
under s 51(xxvi) of the constitution [the race power].”
Gageler said on the “correct understanding” of the aliens power
“neither is a course which the commonwealth parliament ought to be
driven to take”.
Porter also acknowledged the judgment “may have broader implications”.
“It creates an entirely new category of people in terms of what the
government can and can’t do,” he said, in reference to the new category
of “belonger” – a non-citizen non-alien, recognised by the majority.
“Whether or not the principle has application in areas where the
commonwealth relies on other heads of power, I think, is far less
clear.”
Porter argued it was “not always an easy test” to determine if a
person is Indigenous, citing the fact the court now requires a further
hearing to determine if the second plaintiff, Daniel Love, is accepted
as Aboriginal Australian by the the Kamilaroi tribe.
Although the decision has already provoked a furious response from conservative commentators who
argue it introduces a new race-based distinction in the constitution, legal experts including Sydney University constitutional law professor, Anne Twomey,
have warned it was too soon to know what the possible ramifications for the case might be beyond immigration law.
Wamba Wamba lawyer Eddie Synot, manager of the Indigenous Law Centre
at the University of New South Wales, said the judgment concerned a
“very narrow application of the aliens power” and explicitly stated it
was not a recognition of Aboriginal sovereignty.
“More
than anything for me, today just confirmed that the high court is never
really going to be an environment where we’re ever going to be able to
settle those original questions about sovereignty and the founding of
the nations,” Synot said. “It’s going to have to be a political decision
outside of the court.”
Synot said the decision had caused some angst among Aboriginal people
concerned that a court was yet again appearing to decide on Aboriginal
identity and belonging to country. Those concerns have been heightened
in recent weeks by
a request, swiftly denied, for police to investigate the Aboriginality of author Bruce Pascoe.
