Anybody born in Australia is automatically an Australian citizen, and has been since 1949: before that, we were British subjects but not citizens. Nobody was.

Quite a few Indigenous Australians go overseas for work or extended periods. Some marry non-Australians and have their children overseas. Those children are not automatically Australian, any more than any children born overseas to an Australian parent. If they are non-Indigenous and come later to Australia, and commit offences, they can be deported back to their home-country. After all, they are most likely citizens of that country and subject to its laws.

But now, it seems, a person born overseas to an Australian Indigenous parent, who comes to Australia and commits offences, cannot be deported back to their home-country. Why ? Because they have Indigenous ancestry. But our Constitution does not recognise anybody’s ancestry: it’s a neutral document on that score. Do such Indigenous-descended non-citizens have any allegiance to Australia ? No, not really. So what is their connection with Australia, in what way is it so strong that a new class of non-citizens can be created ?

Whether or not they could be deported TO their home-country for offences committed there, or would have the protection of the Australian legal system to stay here, is an unresolved issue. After all, they may be citizens of another country, but not of Australia. Would this constitute some sort of interference, or at least involvement, in the internal affairs of that other country ?

So how does Indigenous ancestry exempt some people from standard legal procedures ? Because, it seems as if the High Court has ruled, they are so immersed in their culture and land that it would be close to impossible to rupture those effective bonds. But does this interpretation depend on a very out-dated notion of identity, particularly Indigenous identity, that those affective ties are ‘in the blood’ ? That cultural practices are timeless and ineradicable ?

How does ancestry become identity ? How does identity become nationality ? Does the struggle for equal rights mean extra rights for some ?

Joe

Hi Joe,

The 4/3 High Court ruling is very much open to interpretation, for example the meaning of "with sufficient connection to traditional societies cannot be aliens" If the Morrison government, or some future government felt it necessary to change the law then they have the powers under the Constitution to make laws with respect to ‘immigration and emigration’. The Brendan Thoms/Daniel Love case is what we are talking about, Thoms was born in NZ, Love in PNG, both moving to Australia as children, both have children who are Australian citizens. Love has been accepted as a member of the Kamilaroi tribe, Thoms the Gunggari tribe.

Being convicted of serious assault and serving more than one year in jail, the men were in line for deportation under the discretionary powers of the Minister. According to the ruling "Aboriginal Australians have a special cultural, historical and spiritual connection with the territory of Australia, which is central to their traditional laws and customs and which is recognised by the common law." On the determination of Aboriginality all seven judges refereed to the Marbo decision; "To be regarded as an Aboriginal person, a person must be biologically descended from Aboriginal people, self-identify as an Aboriginal person and be recognised as a member of an Aboriginal group by its elders or those with traditional authority to determine its membership."

The hard right will froth at the mouth over this one, but I don't have any great concerns about it.

Loudmouth2: Anybody born in Australia is automatically an Australian citizen, and has been since 1949:

Not Correct. Children born of parents of other Countries are citizens of their Parents Country. It's only America that has the "born there Citizen there" Law.

When the child is born the parents "have to" register the child with their Embassy as a child of the parents Country otherwise they are Stateless. If they are born in Australia they are not automatically Australian Citizens & cannot be Registered as Australian Citizens.

Australian parents who have children born overseas are required to have their child registered with the Australian Embassy. This can be done any time, but usually when the child is born. Therefore this didn't have to go before the High Court. The parents could just go & Register the child. Aboriginal, Caucasian or Marsian.

I haven't been contributing for a while because we have been selling up & are Downsizing. Very busy at the moment, lots to do.

Paul1405: The hard right will froth at the mouth over this one, but I don't have any great concerns about it.

The "Hard Right" might, but there aren't very many of them, Thank Gawd, The rest of the Right won't have a problem with it either, mate.

So there, huh! ;-)

I have always been curious about the so called “ spiritual connection to land” that is claimed by some aboriginal people. My children and some grandchildren were raised on their traditional country so I asked some of them if they had any especially strong ties to that land and funnily enough, most said no. Certainly no more than any other person has for the place they were raised. They all said they would be quite happy to live anywhere they had contact with close family members and the employment and housing situation was an improvement on their current situation.
It’s worth noting that for quite a few years now there has been a small but constant trickle of traditional remote people moving away from tribal lands and into regional towns and cities. Joe can confirm this. Obviously for many, the connection to land is not strong enough to stop them relocating to far away locations.

No. Everyone born here is not automatically a citizen. A child must have at least one parent who is a citizen or a permanent resident to be a citizen. The ongoing example of this is the Sri Lankan couple currently on Christmas Island who were warned that having children in Australia after they arrived illegally would not work for them. They have been found - more than once, at our expense - not to be refugees, and their children are definitely not citizens.

That common misbelief aside, the recent decision reached by the High Court that overseas, non-citizens claiming an aboriginal connection cannot be deported is bizarre, and demonstrates that the judiciary is not merely separated from government - it is separated from reality and the planet.

It is significant that the Chief Justice herself was one of the dissenters! What is the point of paying extra money for a Chief Justice if he or she doesn't have some influence or control over the other Justices?

Chief Justice, Susan Kiefel, was very scathing of the finding.