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The Forum > General Discussion > Inalienability

Inalienability

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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
Posted by loudmouth2, Wednesday, 12 February 2020 5:14:04 PM
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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.
Posted by Paul1405, Thursday, 13 February 2020 5:33:27 AM
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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.
Posted by Jayb, Thursday, 13 February 2020 8:55:57 AM
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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! ;-)
Posted by Jayb, Thursday, 13 February 2020 8:59:52 AM
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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.
Posted by Big Nana, Thursday, 13 February 2020 9:28:47 AM
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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.
Posted by ttbn, Thursday, 13 February 2020 9:33:57 AM
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Thanks, Jayb, that makes a lot of sense.

Big Nana, yes, and that 'social distance' from the land has been going on for a very ling time, certainly since the War: people moving away from (at least some) settlements and missions may not get around to ever going back, except for the funeral day-trips, within an hour of which most have already hit the road.

Certainly people have very strong attachments to kinfolk, siblings, cousins, and to school friends, etc. But as for attachment to country, I'm not so sure. There is a beach about a mile along the Lake from my late wife's birth-mission which I stumbled across, teeming with bird-life, which seemed not to have seen a human being for a very long time. My late brother-in-law who worked on the farm there from 1995, did not get around to seeing some back paddocks for nearly ten years; he discovered some interesting and creative uses of those paddocks (and back gates) by some non-Indigenous staff. Nobody else visited those areas while he was working there. Love of the village, and the roads to the nearby towns, yes; of the rest of the mission, no; of all of the group's traditional country, didn't seem so.

So it's a bit presumptuous to merely assume some tight connection between people and land: I wouldn't be surprised if those neither of those two blokes up for deportation have ever knowingly been on Kamilaroi or GUngarri country.

Special rights ? Different rights ? Extra rights ? As Orwell wrote, 'Everybody is equal, but some are more equal than others.'

Joe
Posted by loudmouth2, Thursday, 13 February 2020 9:47:18 AM
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Looks as though the High Court is merely a group of Academics ..........
Posted by individual, Thursday, 13 February 2020 10:10:42 AM
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To bring up emotional claptrap and connection to country in regard to the two thugs who can't be deported is total bulldust. The High Court has done nothing but saddle us with another 'race' of people nobody knew of. It's high time we dropped the stupidity of allowing politicians to appoint activist judges they think will favour their own doctrines and make judges subject to the court of public opinion - voters. Australians are increasingly fed up with politically inspired judges who make stupid decisions based on their own biases, and who do nothing to improve of protect Australia and its citizens. All Australian courts - criminal as well as the HC - need be overhauled, and the people have to envolved.
Posted by ttbn, Thursday, 13 February 2020 10:17:43 AM
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"The Court (High) has become infested with identity politics ideology which divides Australians by race". (Institute of Public Affairs)

The Court decision was the most radical example of judicial interference with democracy in Australian history.
Posted by ttbn, Thursday, 13 February 2020 11:24:50 AM
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Presumably, those two blokes can trace their Indigenous ancestry through their parents, to a network of kinfolk ? It's a pity that Bruce Pascoe can't :(

Sooner or later, those three pissy guildelines on who is, and who isn't, Indigenous, will have to be tightened up. Anybody who has ever been in the business knows that they're all very bendable. Schmooze up to someone important in a local organisation, and they'll sign you in as Indigenous. 'Elders' are often almost self-appointed, or are 'elders' who vouch for each other. People often have the vaguest notion of where their country is, they've hardly ever been there, and certainly not much knowledge about their specific clan country. Down this way, that went more than a century ago.

But what continues is people, relations, families, genealogies. Sooner or later, confidential Registers will have to be set up, genealogies and family trees. Down here in SA, the late Doreen Kartinyeri put together a dozen or so such genealogies, my wife was on at least three of them - they're difficult to subvert or get around. But of course, 'Stolen Generation' is a very useful fall-back position for non-Indigenous frauds who, by definition, are not on any family tree. Oh hello Bruce, didn't see you there.

Joe
Posted by loudmouth2, Thursday, 13 February 2020 11:26:29 AM
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Loudmouth,

You said "Anybody born in Australia is automatically an Australian citizen ........."

Does that mean, let's say, a child born to a French national holidaying in Australia will be an Australian citizen at birth?
Posted by Mr Opinion, Thursday, 13 February 2020 2:03:32 PM
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Misopinionated,

As you could easily see from other comments on this thread, I got that sightly wrong.

Joe
Posted by loudmouth2, Thursday, 13 February 2020 2:14:37 PM
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"Anybody born in Australia is automatically an Australian citizen ..

I'd like to think that they have unquestioned residency until old enough to choose their nationality !
Posted by individual, Thursday, 13 February 2020 2:43:02 PM
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Hi Mr O,

One of our favourite mokos's (extended family grandchild) Mum a Kiwi, Dad a Kiwi, Bubs born in Aussie, Bubs a New Zealand citizen. Two of our favourite mokos's (actual grandchildren) Mum born in NZ (but became an Aussie before kids were born, Dad a Cook Islander on NZ passport, Kids Australian citizens, although they can claim NZ citizenship if they wish.

BTW Mr O, been missing your intelligent input on topics lately. Its all becoming a bit of an echo chamber for the crazed rightwingers. Talk about Aboriginals and you feel you are debating the Knights of the Ku Klux Klan from Alabama.
Posted by Paul1405, Thursday, 13 February 2020 3:40:20 PM
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shows why we need a Trump who won't appoint loony leftist judges who display little to no common sense and push racist leftist agendas.
Posted by runner, Thursday, 13 February 2020 11:20:24 PM
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runner, of course you do approve of the appointment of Judge Roland Freisler as the new Chief Justice of the High Court? That should satisfy you.
Posted by Paul1405, Friday, 14 February 2020 4:53:44 AM
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runner,

Unfortunately we don't have any Trump-like politicians in the LNP; they appointment as many lefty activists to the High Court as Labor does. Scott Morrison spends too much time defending himself from the Opposition instead of getting on with it and being different altogether from Labor which is what the voters want him to be. The way he is allowing some of his own members and his coalition partners to carry on at the moment will see him out next election.
Posted by ttbn, Friday, 14 February 2020 11:07:11 AM
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ttbn, after the spectacular failure of your 'Great White Hope' Cory Bernardi, maybe you can hitch your wagon to the Three Stooges George, Matt and Barney.
Posted by Paul1405, Friday, 14 February 2020 5:00:12 PM
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I don't have much of a problem with this ruling, as it does not apply to everyone with aboriginal blood only those accepted into an aboriginal community as aboriginal. I see it as being accepted as an aboriginal "citizen" parallel to the normal citizenship.

However, I do see the risk of this being abused.
Posted by Shadow Minister, Monday, 17 February 2020 10:30:12 AM
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SM,

There are no forms of parallel citizenship in Australia. There used to be a perverted form of that concept in South Africa :) It was called 'Apartheid'.

So now another criminal has claimed the right, as someone of Indigenous ancestry, not to be deported. He claims to have Tasmanian ancestry but nobody in Tasmania seems to agree. Perhaps Minister Wyatt will vouch for him too. Or some organisation will quickly sign him in.

Family trees, genealogies, registers: they do seem to be becoming more necessary by the week.

Joe
Posted by loudmouth2, Wednesday, 19 February 2020 1:44:50 PM
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LM,

The dual level of citizenship has been in place for decades with native title, it just hasn't been addressed as such before. If the 3rd house of parliament gets established, the process will be complete.

In Aus everyone is equal, but some are more equal than others.
Posted by Shadow Minister, Thursday, 20 February 2020 6:54:37 AM
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