” Sixty-five thousand years. This is the earliest established date of human occupation on the Australian continent. It was reported two years ago by archaeologists, based on “the results of new excavations conducted at Madjedbebe”, a rock shelter in Arnhem Land.
Last week the High Court judges implicitly acknowledged in their findings in the Love and Thoms cases that Aboriginal Australians — even those born overseas and not citizens of Australia — are not within the reach of the “aliens” power in section 51(xix) of the Constitution.
The commonwealth should not resort to entrenchment of race hate and discrimination in dealing with the intersection of criminality, mixed-descent Aboriginal people who are not Australian citizens, and the Migration Act.
This case demonstrates that rule of law is alive and well. What is not clear is whether the ideological use of race in our politics will cease.
We can be sure, though, that hysteria about these issues will continue because weaponising race in the tabloid media is commercially lucrative and builds brand value in the absence of sound citizen values and respect for the rule of law.”
Marcia Langton is Professor of Australian Indigenous studies at the University of Melbourne. Read full article Part 2 below .
Part 1 Stan Grant
” This was about our nation’s history: the legacy of dispossession.
Where do First Nations people fit within the Commonwealth? What is it to be Australian? Indigenous? Can we be equally one and the same?
Can two centuries of imported British law and tradition here, extinguish a connection, law, and lore that has existed for time immemorial?
These questions go to the very heart of the legitimacy of the nation. This is what Indigenous people call Australia’s unfinished business.
The judges’ opinions make fascinating and inspiring reading. They are profound, wise, and sensitive.”
Daniel Love and Brendan Thoms, ( pictured above ) the former born in Papua New Guinea and the latter in New Zealand, are not citizens but both have an Aboriginal parent. Both ran foul of the law and were charged and sentenced for assault occasioning bodily harm.
The Migration Act enabled Home Affairs personnel to cancel their visas, place them in immigration detention and arrange for deportation to their countries of birth. The commonwealth argued in the appeal against their deportation that “since the plaintiffs were not citizens, they were necessarily aliens, and therefore the commonwealth had the jurisdiction to deport the plaintiffs pursuant to s 51(xix) of the Constitution”.
The High Court found to the contrary “that the common law must be taken to have recognised that Aboriginal persons ‘belong’ to the land. This recognition is inconsistent with the treatment of Aboriginal persons as strangers or foreigners to Australia. The status of alien provided for in s 51(xix) therefore cannot be applied to them.”
Following the Mabo (No 2) decision in 1992, the response from the Coalition, business, mining, farming and grazing leaders, along with the usual pack of shock jocks, was hysterical and, above all, wrong. So, too, the response during this past week from the hard right and the far right to the High Court decisions in Love v Commonwealth and Thoms v Commonwealth: hysterical, wrong and misleading.
The facts are more important than ever. The idea of “race” — in defining Aboriginal people, in tackling our standing in the Constitution, in legislation and in our everyday enjoyment of civil rights — must be replaced by a more accurate conception of peoples with unique and ancient cultural and genealogical links to this continent.
The eastern part of Australia became a colony of England in 1770, when Lieutenant James Cook declared it a British possession at Possession Island in the Torres Strait. It was Eddie Koiki Mabo from a nearby island, Mer or Murray Island, in 1982, who challenged the arrogance of this imperialist declaration and the legal ﬁction on which it was based — terra nullius, the Latin term for “empty land belonging to no one” and more particularly governed by no one. In 1992, the High Court recognised within severe limits the pre-existing native title laws of the indigenous peoples and overturned terra nullius.
On January 26, 1788, the colony of NSW was established and thereafter other parts of Australia were declared colonies, eventually numbering six in all. Aboriginal societies and their territories were overrun by settlers and, in many parts, if they survived at all, they did so in much-reduced and horrible circumstances.
The impact of this history on the surviving indigenous populations are many, and the continued attacks on our self-identification as Aboriginal is one of them and, it must be said, is a new and intensified focus of racist attacks.
The contributions of Andrew Bolt to misinformed public perceptions of who is and who is not Aboriginal weaponised this style of attack among the far right. Mark Latham proposed DNA testing for all Aboriginal people, even though this is not possible given the state of the science.
Moreover, the great fear among Aboriginal people who directly bear the burden of our terrible history is the recent proposal to Home Affairs Minister Peter Dutton for a register.
This would be the worst instance of racial profiling and establish the grounds for a race-based purge of Aboriginal people. How else should they interpret the relentless drive of Dutton, whose response following the announcement of the decision in Love and Thoms was that he would amend the Migration Act?
How can he do this without suspending the Racial Discrimination Act?
Without entrenching racism in our laws?
The High Court affirmed the three-part definition of an Aboriginal person: he or she must be descended from an Aboriginal person, must identify as Aboriginal and be recognised by his or her community as such. Facts matter in assessing these issues and, despite the hysteria, that this arrangement has worked well as an administrative guideline for almost a half-century should give Australians confidence.
Australians should feel pride in our common law because it is logical and just: “It follows that a person whom an Aboriginal society has determined to be one of its members cannot answer the description of an alien according to the ordinary understanding of that word.”
Justice Virginia Bell, one of the four judges in the majority, noted: “Whether a person is an Aboriginal Australian is a question of fact.” She went on to point to the origins of the three-part definition of Aboriginality in the Tasmanian dam case in which Justice William Deane proposed the meaning of the term “Australian Aboriginal” as “a person of Aboriginal descent, albeit mixed, who identifies himself as such and who is recognised by the Aboriginal community as an Aboriginal”. Deane inclined to the view that the reference was to the “Australian Aboriginal people generally rather than to any particular racial sub-group”.
The Love and Thoms submissions relied on Justice Gerard Brennan’s formulation in Mabo (No 2) for the meaning of “Aboriginal” Australian: “(m)embership of the indigenous people depends on biological descent from the indigenous people and on mutual recognition of a particular person’s membership by that person and by the elders or other persons enjoying traditional authority among those people.”
The shift from a cultural interpretation of an indigenous polity in the Tasmanian case to a biological one in the Mabo case is a reflection of the increasing misunderstanding of the notion of race, the colonial racialisation of hundreds of Aboriginal peoples as a single race and the worsening commitment to a eugenicist view of humanity, even among our most educated.
A cultural and historical view of indigenous peoples, their antiquity and their belonging is key to getting constitutional issues right. Race is a dangerous concept and my view is that we must dispense with it.
The High Court declined, however, to determine the facts on Aboriginality in the case of Love and Thoms, and instead found: “If the commonwealth did not accept Mr Love’s pleaded case, that he is a member of the Aboriginal race of Australia, the appropriate course was for the proceeding to have been remitted to the Federal Court of Australia for the facts to be found.”
There is so much to understand about the High Court’s findings, and further issues will be raised by the Federal Court if the commonwealth does, indeed, seek clarification of the Aboriginality of Love. The commonwealth should not resort to entrenchment of race hate and discrimination in dealing with the intersection of criminality, mixed-descent Aboriginal people who are not Australian citizens, and the Migration Act.
This case demonstrates that rule of law is alive and well. What is not clear is whether the ideological use of race in our politics will cease. We can be sure, though, that hysteria about these issues will continue because weaponising race in the tabloid media is commercially lucrative and builds brand value in the absence of sound citizen values and respect for the rule of law.