Indigenous people rightfully have many questions about the High Court’s decision on Wednesday regarding Daniel Love and Brendan Thoms. It touched on our rightful place as First Nations and highlighted the many unresolved tensions of our relationship with the Australian nation.
Despite the many severe over-exaggerations this week, however, not much has changed in our relationship with non-Indigenous Australia. The majority of the High Court has affirmed our already existing recognition as Indigenous peoples from Mabo (No 2). They have not recognised our sovereignty. They have not challenged the Commonwealth’s sovereignty.
The majority decision simply said the ‘aliens and naturalisation’ power of the Constitution does not apply to us because of our status as First Nations. The fact that it means the Government must now address the decision’s policy implications for the Migration Act and the Australian Citizenship Act does not mean a ‘new category of person’ has been created.
The decision does leave many questions that can be hard to understand and answer. Why was the Government trying to deport two Indigenous men? How could the Government do so?
While there are important technical issues to understand that offer some explanation as to why, those answers don’t really explain the more important and overarching question of ‘why?’: Why today, after everything, is our place as First Nations still questioned?
Indigenous men Daniel Love and Brendan Thoms were born overseas to Indigenous and non-Indigenous parents. Both men have spent the significant majority of their lives in Australia but are not citizens. Both men committed criminal offences that resulted in prison sentences of over twelve months. Their situation is unique.
But because both Love and Thoms are not citizens they were susceptible to the Australian Government’s punitive policy of deporting ‘non-citizens’ deemed to be ‘aliens’ who have been convicted of serious criminal offences.
The Government’s policy has been heavily criticised by many for its harsh measures that separate parents from children and tears families apart. Many people affected by this policy, who have spent their entire lives in Australia, are as ‘Australian’ as you could be without the paper to prove so – a familiar experience for Indigenous people.
Criticism of the policy is extensive and persistent. It has included representations from New Zealand’s Prime Minister Jacinda Ardern complaining of the obvious and unfair impact upon individuals and families and pointing out that those deported are the responsibility of Australia – they have grown-up here and are members of our community. They are our responsibility.
Daniel Love and Brendan Thoms’ situation, however, has intersected with our more foundational issue that speaks to belonging and community – the unresolved tension of the Australian nation’s relationship with Indigenous peoples.
This tension is visible in the concern from our communities about how three judges could say we are ‘aliens’.
While, technically, the judges have not done that (they have disagreed with the majority on the application of the law, not expressing that they believe us to be ‘aliens’) – this technicality doesn’t explain the bigger question of ‘why?’, or relieve concern.
What it does do is confirm that the Hight Court and the Constitution, as they currently exist, are not capable of dealing with us meaningfully as First Nations.
This is because these institutions were made when our rights as First Nations were denied and we were expected to ‘die out’ or be ‘assimilated’. The limited inclusions and recognitions that we have achieved since this time are constrained by this fact.
This means answers to our enduring demands for treaties, agreement-making and the recognition and enforcement of our political rights are not going to be achieved by legal challenges within the current institutional makeup of the Australian state.
The judgements all affirmed this, affirming overall a limit to Indigenous recognition and that the worthy and understandable demand for further recognition must be achieved through political solutions.
We are not aliens. The High Court has now recognised that in affirming its already existing recognition of our unique status as First Nations.
However, the problem remains that they are unable to provide the meaningful recognition we rightfully demand. This means that any relationship we negotiate within this system – such as the current treaty negotiations happening around the country – remain susceptible to these limits, and the power of the Australian Government under the Constitution.
The Love and Thoms case has affirmed the importance of reforming our country and building a new relationship with non-Indigenous Australia. Because of these reasons, I am an advocate for the Uluru Statement from the Heart and a constitutionally enshrined First Nations Voice in the Constitution.
The First Nations Voice and the changes it will bring will address our enduring questions and the tensions of our relationship with non-Indigenous Australia. This case has provided us not only with the confirmation of our unique place as First Nations, it has also provided us the opportunity to continue to transform that recognition of uniqueness into the recognition of our rightful place as called for by the Uluru Statement from the Heart.
- Eddie Synot is a Wamba Wamba man, a Public Lawyer, Researcher, and the Centre Manager at the Indigenous Law Centre, UNSW.